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Understanding the Different Types of Custody
Going through a separation and divorce can be a very confusing and emotional time, especially when there are children involved. Couples who share children must consider more than just who will receive what property, but also what type of parenting plan would work best for everyone involved. The goal is to reach a common ground that allows both parents adequate parenting time with the children, and that makes the transition from one home to two as smooth as possible. The first step in doing so involves understanding the different types of custody.
Two Main Types of Custody
There are two main types of custody – legal custody and physical custody. It’s important to understand the difference between these two. Oftentimes people fail to consider the legal side of things, instead focusing on the number of overnights they will have with their children. But legal custody is just as important, as it dictates a number of significant things, such as who can move the children out of state, who can modify the parenting plan and/or who has the right to potentially change their name.
Legal custody basically encompasses the nitty gritty aspects of parenting. The parent who maintains this type of custody is essentially charged with making all of the important decisions regarding the children, including education, healthcare, residency, etc. In many cases, both parents will share this role through an arrangement known as joint legal custody. This means that both parties must be able to work together to discuss and make decisions regarding these important matters. Keep in mind that legal custody doesn’t necessarily determine who the children reside with. In other words, it’s possible for parents to share legal custody, but only one maintains physical custody of the children.
Physical custody is what determines where the children will live. In some cases, one parent will maintain physical custody of the children (known as the custodial parent), and the other (known as the non-custodial parent) will agree to spend time with the children based on a visitation schedule set forth in the parenting plan. In other cases, both parents will share equal time with their children. This is known as joint physical, 50/50 or shared custody. In those instances, the children spend an equal amount of time living with each parent, and are considered to have a residency at both homes.
Which Types of Custody Work Best?
There is really no right or wrong answer to this question, and it depends completely on the dynamics of each particular family. Sometimes certain types of custody simply don’t make sense. For instance, if one parent is planning to move a significant distance away, a joint physical custody arrangement probably doesn’t make much sense. Similarly, though one parent may want to share physical custody of the children, his or her work schedule may not make that possible. The goal is to establish an arrangement that works for everyone involved – one that incorporates ample parenting time and allows the children to adjust as painlessly as possible.
How Can Mediation Help?
Mediation can assist you in discussing the different types of child custody, what the pros and cons of each are, and which arrangement would work best for your particular situation. Experienced mediators understand the differences between each arrangement and how they tend to play out, having worked with countless divorcing couples who share children. Through mediation, you can work together as a team to develop an effective parenting plan that includes a custody arrangement that everyone can feel comfortable with, including the children.
In New Jersey, a separation agreement is any legal document signed by both spouses outlining the terms of the separation. Subjects resolved in a separation agreement can include child support, child custody, debt allocation and asset distribution. Notarizing the document ensures its validity, since there is no such case-type in New Jersey that provides for a "legal separation." Spouses wanting child support during the separation period, however, must file a claim with the New Jersey probation department.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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