Basics of Child Custody

If you’re going through a divorce with children, you’ll need to determine where and with whom your children will live. A child custody lawyer can help you negotiate custody, either by agreement or in court. If you as parents can’t agree on child custody, a judge will decide for you. Continue reading to learn more about the process and costs of child custody.

Types of Child Custody

Legal Custody

Legal custody refers to a parent’s right to make major decisions about a child's welfare, health, and education, including:

• where a child will go to school
• whether a child will engage in religious activities, and
• whether a child should receive medical care (except in emergency situations).

Joint vs. Sole Legal Custody

Legal custody can be shared (joint) or sole. Joint legal custody means that both parents share in the right and responsibility to make decisions relating to the health, education, and welfare of a child. Sole legal custody means that only one parent has the right to make these decisions, without the other parent's input.

The fact that a parent has joint legal custody doesn't mean that parent will also have joint physical custody, as these are two separate issues.

Physical Custody

Physical custody refers to where a child will live after a divorce or separation. The parent with physical custody has the right to have the child physically present in the home. If a child lives exclusively or primarily with one parent, that parent is usually referred to as the custodial parent, while the other is the noncustodial parent and typically has visitation rights.

Joint vs. Sole Physical Custody

Joint physical custody means that both parents have significant periods of physical custody. If a child's time is divided equally—or close to equally—between the parents, they are sharing joint physical custody.

Sole physical custody means a child resides with one parent, subject to the court's authority to order visitation time with the other.

How Is Child Custody Determined?

In all states, judges decide custody according to what is in the best interest of the child. The specific factors that go into a best interest analysis vary from state to state. You can perform legal research and/or check with a local attorney to find out what specific factors your state family law courts consider.

Legal Custody. Parents usually share joint legal custody, unless one of the following is true:

• the parents are completely unable to make decisions together
• one parent is deemed unfit
• one parent is incapable of making decisions regarding the welfare of the child, or
• it would be in the child’s best interests for only one parent to have sole legal custody.

Physical Custody. When deciding physical custody, courts will determine the child's best interests. Again, custody laws and best interest factors vary between states, but the following factors are commonly considered when making custody decisions:

• the child’s age and health
• the emotional ties between each parent and the child
• the ability of each parent to care for the child
• any history of family violence or substance abuse, and
• the child’s ties to school, home, and community.

In many cases, courts strive for equal—or close to equal—parenting time, because it’s usually in the child’s best interests to have continuing and meaningful contact with both parents.

In other cases, sole physical custody, with or without visitation to the other parent, may be appropriate. For example, if a parent has a history of domestic violence or abuse, courts may order that all visits with the child be supervised by an approved third party.

Child Custody Between Unmarried Parents

Whether they ever married or not, parents have the right to custody of and/or visitation with their children, even after they separate or divorce. Married parents are presumed to be the biological and/or legal parents of children born to them during their marriage (although for some same-sex couples, they may also want to pursue a second-parent adoption to solidify their parental rights). Biological and/or legal parents are automatically entitled to seek custody and/or visitation with their children, unless a court terminates parental rights.

For unmarried parents, as long as there is no question regarding parental status, the court can grant custody to either or both parents. If one parent contests the other's parentage, then the court will have to intervene and decide this issue first.

In most states, if parents aren’t married at the time of a child's birth, the law does not assume parentage. It does for the mother who gave birth, but for the other parent, he or she will have to prove parentage. Unmarried parents may be presumed, biological, alleged, reputed, or putative based on the family's circumstances and state laws.

Establishing parentage can be complicated, and because the laws vary from state to state, you should contact an experienced family law attorney in your area if your child's other parent is contesting your parentage and right to custody.