Dividing Child Custody

Judicial determination of child custody laws can be interpreted in various ways and take different forms. Since divorce laws are legislated under the state’s sovereignty, each state has its own procedural and substantive laws. This article explains the different types of child custody laws and how the courts decide custody issues.

Dividing Custodial Rights Between Parents

One of the most heart-wrenching decisions divorcing parents must make is determining how to divide up legal and physical custody of the children. Specifically, deciding where the children will live and under what circumstances visitation rights will be applied. 

Sometimes, the divorcing parents have already worked out the custody issues themselves or through mediation. However, if this issue cannot be resolved, the court will decide custody for the parents. The single most important factor for the court to determine is what custodial arrangement will be in the child’s best interests.  

Best Interests of The Child 

In deciding legal and physical custody issues, divorce courts will use various factors to determine what will be in the child’s best interests. 

These factors include the court’s determination of the parent’s honest desire and ability to care for the child’s needs and the strength and quality of the emotional bond between the child and parents. 

On a more cautious and protective note, the court will also consider the emotional health and sobriety of the parents. It will include whether:

• The parent has a criminal record 
• The parent has a history of domestic violence 
• The parent is emotionally or physically abusive to the child
• Whether the parent has abused drugs and alcohol in the home 

Physical and Legal Custody

Differences Between Physical and Legal Custody 

Traditionally, physical custody is awarded to one parent, usually the parent with whom the child will live most of the time. This parent is defined as the custodial parent, and the place of residence is legally referred to as the family home. 

The remaining parent is called the non-custodial parent and parent who is said to have visitation rights with the children.

While “physical custody” is usually awarded to one parent, “legal custody” is generally shared between both the custodial and the non-custodial parents. 

“Legal custody” includes the right to make legal decisions about the child’s welfare, such as whether the child will be educated in private or public school, whether the education will include religious instruction, and, if so, what type of religious instruction the child will receive. 

One of the most important legal custody issues involves deciding healthcare issues for the child. Usually, this decision belongs to the parent with sole legal custody of the child. However, this issue becomes a bit more complicated in cases involving joint custody. Such is the case with Covid-19 vaccines for young children during the past Covid-19 pandemic.

Joint Legal And Physical Custody

Two Types of Joint Custody

Joint custody can mean joint physical custody, joint legal custody, or both joint legal and physical custody. Joint custody is the sharing of parental responsibilities for the child. The goal of joint custody is to encourage both parents to raise their children once the divorce is final. 

Joint Legal Custody

In cases in which joint legal custody is awarded to both parents, they are expected to collaborate in making all legal decisions about the general and legal welfare of the child, including major decisions affecting the child’s education and medical care. Not unlike the arrangement both parents had with the other when they were married. 

Joint Physical Custody

A growing number of parents are choosing to share joint physical custody of their children, believing that equal time with both parents will be in the child’s best interests. 

However, the courts appear to be more hesitant to award joint physical custody of the children because it requires a high degree of cooperation between the parents, which divorced parents are not always capable of achieving. 

However, the court will consider joint physical custody if both parents can make a compelling case that they truly favor a collaborative arrangement and can demonstrate joint custody would be in the child’s best interest.  

Sole Legal And Physical Custody

Total Physical and Legal Control Over The Child

When one parent is granted sole physical custody, the child will reside in the family home with that parent. 

When the parent is granted sole legal custody, that one parent will make all major decisions affecting the child. In joint legal custody arrangements, it’s important to know that if one parent blocks the other parent from the decision-making process, it violates the court order, which is punishable by a contempt citation.

Visitation Rights

Most custodial orders result in one parent receiving sole physical custody of the children. In contrast, the other parent is granted visitation rights with the children. 

Visiting rights aim to ensure that non-custodial parent has their own time with their children. This usually means every weekend or every other weekend, alternating for major holidays like Thanksgiving and Christmas. Absent evidence to the contrary, most courts consider visitation rights to be in the best interests of the child.

Non-Parent Visitation Rights

 The law in this area is still developing, and many states allow judges to grant visitation rights to non-parents such as grandparents and close aunts and uncles.

While the grandparents and grandchild may have an existing bond, they do not automatically have visitation custody rights to their grandchild.

Best Interests of The Child

If the divorced parties do not agree on visitation rights, a non-parent may have the right to petition the court to obtain such rights.

If the grandparents can establish they have a positive and nurturing bond with their grandchildren, courts are more willing to grant visitation rights to them based on the belief it would be in the best interest of the child.  

In these cases, what is in the child’s best interest outweighs the parent’s rights to make visitation decisions about their child.

Divorce Lawyers

If you have specific questions or require additional information about your legal rights and obligations, consult a verified Divorce Lawyer as soon as possible.