In many cases, the most contentious issue in a divorce is trying to come up with a workable child custody arrangement. Cooperation is the best course of action if you can manage it. If not, you could wind up in front of a judge who will settle the issue for you.
And you may not like those results.
Before you begin to negotiate with your spouse, here’s what you need to know about the various forms of child custody and how they can impact your life and the lives of your children.
Legal Custody vs. Physical Custody: What’s the Difference?
The first thing you need to understand is that there are two forms of custody. They are legal custody and physical custody. Each of these can either be sole custody (one parent) or joint custody (both parents) situations, giving you four options for a custody arrangement.
Essentially, legal custody refers to a parent’s right to make important decisions on behalf of their children. This may include where they will go to school, medical decisions, what type of religious upbringing they will have, and so forth.
Physical custody refers to where the children will live each day with each parent.
Unless there are extenuating circumstances, most courts prefer to see that both parents are actively and regularly involved in their children’s lives following a divorce. However, even in cases where sole custody is awarded, it does not mean that the other parent is removed from the child’s life.
The four options can be mixed or matched in any possible combination. For example, one parent could have sole legal custody but the parents could also agree to have joint physical custody of their children.
Most of the time, courts want parents to work out a suitable child custody arrangement. Judges are aware that nobody knows children better than their parents and they much prefer to see a cooperative agreement put in place. This increases the likelihood that it will be adhered to going forward and also set a positive tone for a smooth co-parenting relationship.
From a practical point of view, parents who can come to an agreement on their own will save a lot of time, money and angst in the long run. But if you hit a snag, hiring an attorney is not always necessary. You can always consider retaining the services of parenting coordinators, mediators or collaborative law practitioners instead.
Regardless of what the parents decide, the court will review the custody arrangement (often referred to as a parenting agreement) and will sign off on the terms as part of the final divorce decree.
Before reaching a hasty decision or losing your cool when a disagreeable option is proposed, it’s best to weigh the pros and cons of how legal and physical custody will impact you in the new chapter of your life.
Legal Custody Overview
Legal custody means that one or both parents have the legal authority to make important decisions about a child’s well-being and how they will be raised. This may include where a child goes to school, extracurricular activities, where they will receive medical care, and decisions about religion, among others.
Many states will award joint legal custody after a divorce, citing a preference for both parents to be involved in the children’s lives as much as possible. This means, like it or not, parents will need to call a truce and find a way to cooperate with each other. Not doing so means you could incur the wrath of a judge if you’re forced to go back to court.
What is Joint Legal Custody?
Joint legal custody means that both parents share in major life decisions regarding their children. In cases where joint legal custody is in force, it’s often best to draft a written agreement to avoid confrontations in the future. In fact, a judge may require this as part of the divorce settlement.
There are several variations of joint legal custody which is why a written agreement may be the best course of action.
In many cases, parents agree to collaborate on as many decisions as possible. There is open communication that may also include discussing a matter with a child, especially if they are a bit older.
As a variation of this, parents may decide to work together on all big decisions but let each parent handle smaller decisions on their own as they come up.
At other times, it may be agreed that the parent who has primary physical custody of the child will be the one to make all legal custody decisions. This may be the case when there is limited shared physical custody.
Another possible option is that each parent is in charge of certain types of decisions. For example, a mother may feel strongly about religion while a father may have decided preferences about which schools their children should attend.
When both parents are attentive and want to be involved in important decisions, it can lessen the impacts of loss or sadness for a child following a divorce. Demonstrating collaborative parenting is key to minimizing children’s psychological problems.
For parents, it can also ease the burden of having to make so many important decisions about a child’s upbringing without the benefit of someone else to provide feedback.
This assumes that there is a level of civility that remains after a marriage. In cases where marriages and divorces have turned ugly, the best way to move forward is through as little contact as possible with your ex.
Often, one parent may be given the authority to be the “tiebreaker” when disagreements come up.
Joint legal custody is the default option in most cases unless abuse is present, there are relevant and special circumstances, long distances between the parents’ addresses, or a minor is a special needs child.
Some courts may also consider the overall moral conduct and actions of the parent, which parent has had more frequent and ongoing contact with the child, and the current quality of the relationship between a parent and the child.
What is Sole Legal Custody?
Courts prefer joint legal custody but may award sole legal custody to one parent only if they determine a parent is unfit. This may be due to drug or alcohol abuse, financial problems, criminal activities, or if one parent is living with a new partner that is considered unfit or potentially harmful to the child.
When sole legal custody is awarded, the “out” parent will have no say in quality-of-life decisions, even if they are paying child support and alimony or they have been awarded equal physical custody rights.
Key Point: The bar to prove that sole legal custody should be awarded can be high. But that also means having a sole custody decision overturned can be difficult as well.
Courts will usually require significant evidence proving that a parent has changed and is now capable of having a more direct role in their children’s legal custody issues.
Also, the good news about sole legal custody is that it’s often easier to be more consistent with a child and its easier to make major decisions.
Sole legal custody also removes the gray areas that can get sticky when two parents disagree and neither one is willing to compromise for the good of the child.
Parents separated by great distances can also find joint custody challenging.
Physical Custody Overview
Physical custody is exactly what it sounds like. It determines what percentage of time each parent will physically spend with their children.
In general, courts recognize that children benefit the most by spending copious amounts of time with both parents. But state laws and guidelines, as well as what it is the best interests of the children, ultimately are the deciding factors.
Due to work schedules, school schedules, extracurricular activities, and distance, determining physical custody can be complicated.
What is Joint Physical Custody?
Joint physical custody means that children spend nearly equal amounts of time with each parent. In many cases, courts prefer that parents come up with a joint custody arrangement that works best, given schedules and distances. If not, the court will intercede and determine joint physical custody arrangements instead.
There are no set rules when it comes to joint physical custody. Sometimes, a “one week on, one week off” schedule works best. At other times, one parent may take children to school and have them every other weekend while the other parent picks them up and keeps them in the evenings.
Joint physical custody works best when both parents live short distances from each other and they are able to get along reasonably well with each other. This is important since pick-ups and drop-offs happen on a routine basis. Any acrimony during these exchanges can only serve to harm the children.
What is Sole Physical Custody?
Sole physical custody is rarely what it sounds like. For legal or practical purposes, one parent or the other will be designated as the residential parent to provide a solid base for school and community involvement purposes.
Unless a parent wants absolutely nothing to do with their children, or they are battling substance abuse, domestic abuse, or criminal problems, the courts will make sure that a fair visitation schedule is put in place.
This may include one night a week plus alternating weekends and holidays, plus a few weeks in summer. Or it could be modified based on distance, work, and other related factors.
Regardless of how sole physical custody is set up, getting comfortable with this type of arrangement can be a difficult transition.
Read More: The Psychological Effects of Divorce on Children (and How to Help Them Cope) Children can benefit from a sole custody arrangement because they will be more anchored to a single home residence. The “back and forth” involved in a joint custody agreement can be jarring for children more often than not.
Depending on how a divorce is settled, it’s also quite possible that children may be able to keep living in the same house they were in prior to the divorce.
The downside of a sole custody arrangement is that one parent may feel cut out of their children’s lives due to much less contact. Their role as a co-parent may breed resentment and put a strain on family relationships.
What is Bird’s Nest Custody?
Instead of children rotating from parent to parent in a shared physical custody arrangement, in a bird’s nest custody, the children live in one location and it’s the parents who rotate in and out.
For example, a mother may live with the children Sunday night through Thursday night and then a father will show up and at the same location Thursday night through Sunday night.
This eases the emotional transition of children during divorce. It’s rare that this is granted and generally not mandated by the courts unless the parents specifically ask for it.
Because parents share a home, it can be easier to communicate with each other and it makes things simpler when meeting the school, extracurricular and other needs of children who have a single base of operations.
The downside of bird’s nest custody is that parents are in constant upheaval and there is the added burden of maintaining three separate residences instead of two as is the case in a more traditional custody arrangement.
Physical Custody Examples
There are countless ways to set up a custody and visitation schedule. Here are some of the most common examples of 50/50 custody schedules.
Alternating Weeks – The child(ren) spend one week with one parent and then the next week with the other parent. It’s common to add in a mid-week visit with the alternating weeks schedule.
3-4-4-3 Schedule – In the first week, child(ren) spend three days with one parent, then four days with the other parent. The second week flip-flops the amount of time.
2-2-5-5 Schedule – Over a two-week period, child(ren) spend two days with each parent and then five days with each parent. This example assumes the two-week period starts on Monday at 3 pm.
2-2-3 Schedule – Over a two-week period, child(ren) spend two days with one parent, two days with the other parent, and then three days with the first parent. The times are flip-flopped during the second week.
These examples are just a starting point. There’s absolutely nothing wrong with customizing them so they fit the needs of your family.