When a couple decides to get a divorce, there are many issues that may need to be addressed, including spousal support, child support, and equitable distribution of the marital assets including the sale or buy-out of one party from the marital residence. When the divorcing couple has a child, the pivotal question that must be addressed is the issue of custody. Custody refers to the responsibility of a parent for the day-to-day care of the child, including decision making for the child’s needs. Custody can be broken down into two parts, legal custody and physical custody. The parent, or parents, with legal custody are given authority of decision making for all major decisions in a child’s life, including educational services, medical care, and religious upbringing. As it sounds, the parent with physical custody is the parent who resides primarily with the child. Physical custody refers to the parent or parents that are responsible for the physical care and supervision of the child. Both physical and legal custody can be granted solely to one parent, jointly between both or shared. Court’s making custody determinations when parents cannot agree will always base their decisions on what is in the best interest of the child.
Sole legal custody is when one parent is awarded complete legal custody of the child. Sole physical custody is when the child lives primarily with one parent. While a parent may have sole physical custody, the non-custodial parent may still have custodial access or visitation with the child. Sole legal custody would provide one of the parents with decision-making authority over all major decisions, without any limitations from the other parent. Even in situations where one parent has sole legal custody and would therefore be entitled to make major life decisions such as the child’s education program, the non-custodial parent, unless explicitly prohibited in a Court Order, would still have equal access to the child’s education and health care records.
Joint custody occurs when both parents agree to be jointly responsible for the child’s care and well-being. Parents can have either joint physical custody or joint legal custody or both. Parents must agree to this arrangement, as joint custody requires the parents to cooperate and co-parent. Judges must be convinced that the parents will be able to co-parent together toward the best interest of the child before they will sign off on an Order granting joint custody. Joint physical custody occurs when a child resides with each parent fifty percent or close to fifty percent of the time. When the child splits their time evenly between the parents, neither parent can be said to be the custodial parent. This arrangement may also affect the implementation of child support, depending on the incomes of the parents.
Joint legal custody requires that both parents engage in meaningful conversations to discuss the various major life decisions that can impact a child. Some instances of joint legal custody may still provide one parent with final decision-making authority or joint legal with only one parent as primary custodian. When this is the case, the parents are still required to have a meaningful discussion in which the other parent has a chance to be heard. When the parent with final decision-making authority decides, the other parent always has the option to return the matter to court. Another option is to grant neither parent final decision-making authority, and instead, both parents would agree to consult with an expert and abide by the final determination of the expert. In this scenario, the expert would change based on the major life decision. Decisions affecting the child’s healthcare would be delegated to the child’s primary care physician, while decisions affecting the child’s educational program may be delegated to the child’s Committee on Special Education. Lastly, parents may agree to have shared legal custody, in which each parent is granted final decision-making authority over different areas of major life decisions. For example, parent one may have decision making authority over education decisions, while parent two has decision making authority over medical decisions. Ultimately all decisions are to be made pursuant to the best interest of the child.
This is not intended to be legal advice. Speak with an attorney to discuss your specific situation.
Conor C. Horan, Esq., is an associate attorney at J&G concentrating in matrimonial and family law. He can be reached at 845-764-9656 or by email.