If you and your spouse are going through a divorce and you have a child together, who gets custody of that child is one of the most important decisions you’ll have to make. There are different types of custody, such as sole custody and joint custody.
While both terms deal with the care and custody of your child, there are differences between them.
What is Joint Custody?
If your child is residing with you, you may be referred to as the custodial parent and have physical custody. However, both you and your ex-spouse may have joint legal custody as well. In joint custody situations, both you and your ex-spouse may be very involved in your child’s upbringing. Additionally, joint custody can only happen if both parents agree.
In joint custody, both you and your ex-spouse will have access to your child’s school records, medical records, employment records, etc. All major decisions like colleges, surgeries, travelling abroad, and others need to be approved by both you and your ex-spouse.
If you and your ex-spouse have a true joint custody agreement, then the court will grant you and your ex-spouse both physical and legal custody. What this means is that your child may be with you 50 percent of the time and with your ex-spouse 50 percent of the time.
But sometimes equal split physical custody isn’t practical due to the child’s school schedule, your or your ex-spouse’s work schedule, and personal obligations. Because of this, the court may order splitting physical custody in a way that is in the best interest of your child. Alternatively, you and your ex-spouse may have the option of coming up with your own joint physical custody agreement that works for both of you and your child. Your family law attorney will present this agreement to the judge and the judge will either approve it, modify it, or deny it.
What is Sole Custody?
In sole custody, either you or your ex-spouse may be granted exclusive rights to the custody of your child. It’s extremely rare for you or your ex-spouse to receive sole physical and legal custody. In general, a parent will only be awarded sole custody if the other parent is a child abuser or addicted to drugs and/or alcohol.
Sole custody is defined in general terms as the exclusive right of one parent to both physical and legal custody of the child. For example, if you are awarded sole custody of your child, you will be responsible for making all decisions regarding your child, and the child will be living with you at all times.
In many sole custody arrangements, the courts may allow your ex-spouse to have visitation with your child, but that depends on the circumstances – and, in some cases, visitation may be denied if the court believes visitation is not in the best interest of your child.
If your ex-spouse has sole custody of your child, you – as the non-custodial parent – don’t have any access to your child’s records. You would have to get approval from your ex-spouse or the court to view your child’s school records, medical records, etc. While you may have no role in making any decisions for your child, you are still required by law to pay child support.
What is the Difference Between Legal and Physical Custody?
There are two types of custody – legal and physical. Physical custody is where the person who your child lives with provides all the daily care your child needs. Legal custody is the right to make important decisions regarding your child such as medical care, education, and religion.
When the court orders joint legal custody, you and your ex-spouse will have to get each other’s approval before making important decisions regarding your child. Additionally, the court may decide that you or your ex-spouse has sole legal custody if it involves a specific issue, such as where your child is going to go to school.
What is Mixed Sole and Joint Custody?
In some cases, a court may decide to order a combination of sole and joint custody. This means that either you or your ex-spouse will have sole physical custody of your child, but also have joint legal custody.
The court could also do the opposite, such as grant you or your ex-spouse sole legal custody but allow both of you to have physical custody of your child.
The court evaluates each individual case and set of circumstances before making a decision. The judge will look at many different factors when deciding on joint or sole physical and legal custody. As in every custody case, the court will do what they believe is in the best interest of your child.
Can a Child Custody Agreement Be Modified?
Unless your rights as a parent have been terminated either by you or by the courts, any custody agreement may be modified if you or your ex-spouse petitions the court and the court finds cause to do so.
In this case, the court will look at whether any circumstances have changed so significantly that a change is required, and if that change is in the best interest of your child.
When Child Custody Negotiations Fail
The custody of your child can be a tough issue that may lead to heated discussions between you and your ex-spouse. It’s important to remember that if you and your ex-spouse cannot come to an agreement, the courts will do it for you.
When this happens, in most cases, the court will order some kind of joint custody arrangement, allowing both you and your ex-spouse custody of your child. However, in some cases, the court may make a ruling that allowing either you or your ex-spouse to have access to the child is not in the child’s best interest, and grant one of you or your ex-spouse sole custody.
When trying to decide whether to petition the court for either joint or sole custody of your child, you may want to enlist the services of an experienced family law attorney to assist you. Child custody laws can be extremely complex, and they are not the same in every state, which could make it difficult for you to know exactly what you need to do. An experienced family law attorney understands how the system works and how to prepare your case to make it the strongest it can be.
The assistance of a family law attorney can prove to be invaluable when you are having trouble testifying about your parenting abilities. Additionally, by having a family lawyer at your side, you can avoid a bitter custody battle during your divorce that may damage your relationship with your child.
You should also think about hiring a family law attorney before setting out on any custody discussions with your ex-spouse, because it may be difficult to change any decision that’s already been made.
Because there are so many different types of child custody options that may be available to you and your ex-spouse when you are going through a divorce, it’s important to understand each option. Keep in mind which factors the court considers before deciding on or approving any child custody agreement between you and your ex-spouse.