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What is child custody?

Child custody refers to a parent's rights and responsibilities towards their child. They include the right to have a child live with them, the duty to meet the child's basic needs (such as food and shelter), and the right to make certain decisions on the child’s behalf.

Married parents automatically share all custodial rights for their own children. But during divorce, parents must re-determine these rights. What rights you hold afterwards will depend on the nature of your child custody order.

Most child custody cases arise during divorce. Divorcing parents will need to establish a new custody arrangement that reflects the change in their living situations. If you’re able to cooperate with your spouse, you may be able to resolve most custody issues together. Otherwise, the court will have to make an agreement on your behalf.

There are also a few cases where child custody can be an issue outside of divorce. Unmarried mothers receive full custody by default, but the father can challenge this arrangement if he’s listed on the birth certificate or if he can prove paternity. And it’s also possible for a child's grandparents to petition for custody if they believe the parents are unfit.

Child custody battles are both expensive and time-consuming. If you can avoid sending the matter to court, it’s a good idea to do so. There’s a few different ways you can do this.

First, if you're on relatively good terms with the other parent, you may be able to sit down and mutually discuss the issues. If you think it’d be better to discuss things in a more formal environment, there are several “intermediate” options that still allow you to avoid the courtroom. Alternative dispute resolution methods or the collaborative law process can both be used to develop a parenting plan.

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What are the different types of child custody?

Legal custody

A parent with legal custody can make important decisions on the behalf of their child. Choices about medical care, education, and religious upbringing all fall under the umbrella of legal custody.

Legal custody may be given to a single parent, or shared between both parents. If only 1 parent has legal custody, they don't need to get the other parent's approval to make a decision. But if custody is shared, then parents will need to agree on any major decisions.

Physical custody

A parent with physical custody has the right to have their child live with them on at least a semi-permanent basis. Physical custody may either be granted exclusively to 1 parent, or shared between the 2 parents.

Sole custody means the child lives with only 1 parent on a permanent basis. However, the noncustodial parent is often granted visitation time to offset this. Shared physical custody means the child splits the time they spend living with each parent. Most shared custody arrangements have the child spending at least 1/3 of their time with each parent.

How a custody lawyer can help

Custody arrangements can have long-lasting effects. Even if you’re on good terms with the other parent, it’s wise to have a lawyer look over your plan to ensure there aren’t any problems. You should always have a lawyer if your case is contested.

What are child custody decisions based on?

Child custody decisions are based on the best interests of the child. This simply means that courts should prioritize the needs of the child above those of either parent. Courts will still consider each parent’s situation, but the main basis of their decision will be what best serves the child’s interests.

Each state has a slightly different definition of what these interests actually are, and some give courts more specific guidance than others. Some of the factors courts may look at when considering the best interests of the child include:

  • Each parent’s relationship with the child
  • The ability of each parent to provide for the child
  • The physical and mental needs of the child
  • The mental health of each parent
  • The child’s own wishes

What is joint custody?

Joint custody, also known as shared custody, is when some or all custodial responsibilities are held by both parents. In the case of physical custody, this means that the child will split their time living with each parent. And in the case of legal custody, this means that the parents will need to come to a mutual decision on any important issues (though 1 parent may be granted tie-breaker authority).

Joint legal custody is much more common than joint physical custody. This is primarily because courts tend to favor stable living arrangements as most beneficial to the child, but believe a mutual decision-making process is ideal.

What are visitation rights?

Visitation rights refer to a parent’s right to spend time with their child. Parents who do not receive primary custody often receive visitation time instead. Courts tend to give preference to agreements that parents worked out among themselves. As long as the proposed agreement serves the best interests of the child, the court will usually approve it.

If the court has to create the visitation agreement, your visitation schedule will depend on what the court believes is a fair arrangement. The court’s decision will be based on both the best interests of the child, as well as the living situations of you and your spouse. For example, an office worker and a firefighter in otherwise similar situations will likely have very different visitation schedules due to the difference in their work duties.