Legal and Physical Custody
At some point a judge may decide the terms of legal and physical custody.
Legal custody means the legal right and responsibility to raise a minor child and to make decisions on her or his behalf. "Joint," "split," "and "shared" legal custody require both parents’ approval for all major decisions.
Physical custody means possession and it defines the physical location of the child. The parent with whom the child resides is said to have physical custody.
Legal custody to a parent or both parents awards the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare. Legal custody means the right to make decisions about the welfare of the children -- where they go to school, religious upbringing, friends and routines.
Physical custody to one or both parents defines and declares the child’s residency.
Some years ago, The New York Times carried a story about a young boy who alternates between living with his mother and his father by commuting between San Francisco and Los Angeles. The boy had accumulated many, many frequent flier miles, but the story illustrated the many variations that can be given the physical custody. The parents of this young boy shared his physical custody during the summer recess when he was not in school.
Depending upon the arrangements, physical custody may be sole or joint, but sole custody with the mother is more the norm. Sometimes physical custody is called primary physical custody.
Physical custody can be a particularly contentious issue. When a child lives with one parent, he or she obviously is not with the other. And no judge is a King Solomon who can cut the child in half to satisfy both parents.
In both physical and legal custody, judges are guided by the gold standard: the best interest of the child. Like a refrain in a Greek chorus, this phrase -- the best interest of the child -- appears again and again in the literature of custody cases. The age of a child, each parent’s living arrangements, a parent’s willingness to support the other’s relationship with a child, a parent’s relationship with the children before the divorce, a child’s preference (in some jurisdictions) -- all are considered in determining the custody arrangements that are in his or her best interest.
In many, if not most jurisdictions, courts are guided by the Maternal Preference. Put in a simple way, this means that, all other things being equal, a mother will get physical custody of small children. In general, courts seek to minimize the disruption to the child. In practice, this means that the child very often ends up with the mother in the family home (and the father, who once lived there, now becomes a scheduled visitor).
Legal custody may be awarded to one parent, which is called sole legal custody. In this routine, only one parent holds the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare. Legal custody may also be awarded to both parents, which is called joint legal custody. Here both parents hold the right to make legal decisions for the child regarding education, health care, religion, and his or her general welfare, without either parent having superior rights. The most common form of joint legal custody designates one parent as having primary residential (i.e., physical) custody.
In a similar way, physical custody may be awarded to one or both parents. Here, sole physical custody gives one parent physical possession of the child and the other has specific visitation rights. Less commonly, joint physical custody give both parents shared possession of the child. In this routine, a child resides with each parent a substantial amount of time during the course of a calendar year. The arrangement does not have to be split 50-50, but it does require some consistent plan or schedule. This type of custody arrangement is not very common, for it is rare when this type of arrangement is found to be best for a child.
Joint or shared physical custody means a child has two homes. The parent who has custody must have a suitable place to live, provide adequate supervision when no one is at home, maintain reasonable discipline and give nurturing and affection.
Courts prefer both parents have joint legal custody. Currently, in most states, the courts favor it when the parents have the ability to cooperate with one another. Many divorcing parents do work very hard towards achieving this goal. Joint custody is definitely not for everyone and can only come about as a result of a rational decision-making process focused on the future expectations of the parents.
Common Questions and Answers
Q. What should divorcing parents remember about custody?
A. Judges are very open to any custody arrangement that two rational parents can fashion. The parents, however, must be rational and cooperate with each other. In child custody, parents who cannot behave rationally invite the intervention of the court.
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