Divorce can be a hectic experience, especially if there are kids involved. In many cases, both partners want to retain custody of the child/children. What follows is an intense legal battle between partners.
But since the court’s decision is solely based on the best interest of the child, both parents may be given a chance to be in their child’s life in one form or another. There are two basic types of custody: physical and legal custody. Both cases are unique, and there is a need to understand how they work before stepping into the courtroom.
This article will provide an in-depth view of child custody, with a primary focus on understanding physical vs. legal custody and the factors that come into consideration when determining custody.
What Is Legal Custody?
Legal custody includes everything from medical care and schooling to religious and extracurricular activities. It is a form of authority granted by the court to make important decisions about the child’s life.
Most partners make these crucial decisions about their children’s lives together. So, when they get a divorce, the court may want to keep this arrangement. In this case, the partners enter into a joint legal custody agreement, which gives each parent a fundamental right to decide how their children are raised.
That said, even with joint legal custody, the primary residential parent (primary custodian) will often make routine decisions like authorizing emergency treatment and scheduling doctor’s appointments.
Due to the high potential for conflicting interests, both partners must work out the practicalities of how they will handle situations. This is mainly in the form of writing incorporated into the divorce settlement agreement or in the separate custody agreement.
What Is Physical Custody?
Physical custody is a court-mandated authority given to either partner to live with and take care of the child on a legal basis. Typically, one partner attains the role of the primary physical custodian, while the other gets secondary physical custody.
The court’s decision about who gets primary physical custody rights is based on several varying factors. That said, in most cases, the partner who acted as the children’s primary caregiver during the marriage gets primary physical custody.
Physical custody comes in two forms:
- Sole physical custody with visitation
- Joint or shared physical custody
Sole Physical Custody With Visitation
In this form of physical custody, one parent gets to live with the children while the other one gets visitation rights. Sole physical custody with visitation isn’t very common. It’s mostly used in situations where the parents live far apart, making it difficult for the children to move back and forth frequently, or when the other partner isn’t able to provide proper care for the child due to mental health issues, housing instability, or substance abuse.
The primary goal is to ensure that the parents have frequent and continuing contact with their children even when separated.
Joint or Shared Physical Custody
This is the most common form of physical custody. In shared physical custody, parents split the time shared with their kids. This way, the children get some form of family continuation with two engaged parents living in separate homes.
In many states, the court starts by presuming that joint physical custody is the best option for the kids. However, if any parent disagrees, they have the chance to present convincing evidence proving that shared custody might not be good for the kids.
With that said, joint/shared custody is not often a 50/50 agreement. Typically, children get to spend school nights with one parent and weekends with the other.
What Factors Does the Court Consider When Determining Custody?
All decisions made when considering custody are based on the best interests of the child. In that regard, the court takes numerous factors into consideration when determining the most favorable custody agreement.
Here are some of the most notable factors that affect child custody evaluation:
- The parent’s relationship with one another, particularly around their ability to communicate and cooperate as co-parents
- The existing relationships between the child and each parent
- The living situation of each parent
- Age and number of children
- The financial situation of each parent
- The parent’s ability to take care of the children’s special needs
- The children’s desires (if they are at an appropriate age to make a decision)
The Bottom Line
Custody agreements are primarily designed to ensure the children enjoy the presence of both parents in their lives, even if it’s on separate terms. Regardless of the form of custody, parents have to work out a parenting plan to ensure mutual cooperation on matters relating to their child/children’s upbringing.
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