Custody - Defined

The term custody is highly inflammatory when used in the context of divorce proceedings. It has come to be associated with a sense of ownership and court battles. The term visitation, can also be upsetting as no parent ever wants to be thought of as “visiting” their children. However, if we remove all of the emotion for a moment and just consider the concept of custody purely as a legal term, it contains two components for consideration: legal custody and physical custody.

Legal Custody refers to decision-making authority. If parents have “joint legal custody,” it means that they will mutually make decisions on all matters of education, religious upbringing and medical care. If a parent is granted sole legal custody, it means that they can independently make those decisions, or ideally, make them jointly, but if agreement is impossible, then the person with sole legal custody has the right to make the final decision.

Physical Custody refers to where the child lives. If parents have “joint physical custody,” it means that the child has two homes, subject to a schedule. The child might spend 30% with one parent and 70% with the other parent, but it is still joint physical custody. If a parent has sole physical custody, it means the child lives solely with one parent and the other parent might have a visitation schedule.

Both components are not mutually exclusive, so for example, it is possible for a parent to have sole legal custody and joint physical custody. In situations where the ability to agree to basic needs for the child is absolutely impossible, then it might be deemed to be in the best interest of the child for only one parent to be able to make those decisions even though the child lives part-time with each parent.   (We will go into more detail about that in a follow-up article.)

Most states assume joint legal and joint physical custody unless contested by either parent. (We always recommend that you check with the guidelines of your county or state family court for the Family Law code that governs your area.) If a motion is filed requesting sole legal and/or physical custody, then the court process takes over and you will be guided through the court system to address that motion.

whenever possible, we always suggest removing child custody matters from the legal and court realm into the less threatening realm of parenting mediation where you work together to develop a parenting plan.

If you are a family who accepts joint legal and joint physical custody, then you are left with just two child-oriented details to work out: the amount of child support that is applicable and a schedule for the allocation of time spent with each parent.

Whenever possible we like to de-escalate all the drama that can be associated with matters of custody. That is not to ignore the critical situations when immediate intervention by the court is essential for the well-being of a child. But, in many cases, the best way to think about it is that this child has a mother and a father (or two mothers /fathers), that is what matters, and that will never change; divorce or no divorce. Parents might disagree about a lot of things, and maybe even find it difficult to be in the same room, but at a minimum if that is acknowledged, then it really comes down to the schedule and some basic agreements about caretaking. So whenever possible, we always suggest removing child matters from the legal and court realm into the less threatening realm of parenting mediation / the development of a parenting plan. (For more information, see What is a Parenting Plan?) Keep child-related matters in the family and don’t allow lawyers or a judge micro manage your family’s day-to-day existence. If there are specific areas of disagreement, such as summer camp, or school, for example, there are alternatives to the court for reaching an agreement. We will cover that in a follow-up article.

*  Parenting plan mediation does require payment to a professional. Some courts will facilitate this process with their own parenting mediators, so check your county family court for the available resources and the cost.


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