Custody

Residence and contact issues typically arise in proceedings involving divorce, annulment and other legal proceedings where children may be involved. In most jurisdictions the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.

Forms of Custody

  • Alternating Custody is an arrangement whereby the child/children live for an extended period of time with one parent, and then for a similar amount of time with the other parent. While the child/children are with the parent, that parent retains sole authority over the child/children.
  • Shared Custody is an arrangement whereby the child/children live for an extended period of time with one parent, and then for a similar amount of time with the other parent. Opposite to alternating custody both parents retain authority over the child/children.
  • Joint Custody  is an arrangement whereby both parents have legal custody and/or physical custody.
  • Sole Custody is an arrangement whereby only one parent has physical and legal custody of the child/children.
  • Split Custoday is an arrangement whereby one parent has full-time custody over some children, and the other parent has full custody over the other children.
  • Third Party Custody is an arrangement whereby the children do not remain with either biological parent, and are placed under the custody of a third person.

Physical Custody

Physical custody involves the day-to-day care of a child and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her.

If a child lives with both parents, each parent shares joint physical custody and each parent is said to be a custodial parent. Thus, in joint physical custody, neither parent is said to be a “non-custodial parent.” In joint physical custody, actual lodging and care of the child is shared according to a court-ordered custody schedule is known as a parenting plan. The term “visitation” is not used in this context, but is reserved to sole custody orders. Primary custodial parent and primary residence have no legal meaning other than tax status. Both parents are still said to be custodial parents.

Joint physical custody creates a presumption of equal shared parenting. In most states, joint physical custody only creates an obligation to provide each of the parents with significant periods of custody to assure the child of frequent and continuing contact with both parents. Courts have not defined what “significant periods” and “frequent and continuous contact” mean, which requires parents to litigate to define what they mean.

When  a child lives with one parent, that parent has sole physical custody and is the custodial parent whereas the other parent is said to be the non custodial parent, but has visitation rights with his/her child.

Joint Physical Custody

Joint physical custody is acourt order whereby custody of a child is awarded to both parties. In joint custody, both parents are custodial parents.

Many states recognize two forms of joint custody: joint physical custody, and joint legal custody. In joint legal custody, both parents have access to educational, health, and other records, and have equal decision-making status where the welfare of the child is concerned.

In joint physical custody, actual lodging and care of the child is shared according to a court-ordered custody schedule known as a parenting plan. The term visitation is no longer used in these instances, however is reserved to sole custody orders.In some states joint physical custody creates a presumption of equal shared parenting, however in most states, joint physical custody creates an obligation to provide each of the parents with significant periods of physical custody so as to assure the child of  frequent and continuing contact with both parents.

It is important to note that joint physical custody and joint legal custody are different aspects of custody, and determination is often made separately in many states’ divorce courts. E.g., it is possible to have joint legal custody, but for one parent to have sole physical custody In some states this is referred to as Custodial Parent and Non-Custodial Parent.

Also, where there is joint physical custody, terms of art such as “primary custodial parent” and “primary residence” have no legal meaning other than for determining tax status, and both parents are still custodial parents.

Sole Physical Custody

Sole physical custody means that the child shall reside with and be under the supervision of one parent. Physical custody involves the day-to-day care of a child and establishes where a child will live. A parent with physical custody has the right to have his/her child live with him/her. If a child lives with only one parent, that parent has sole physical custody and is the custodial parent. The other parent is said to be the non-custodial parent, and may have visitation rights with his/her child.

Custodial Parents

A custodial parent is a parent who is given physical and/or legal custody of a child by court order.

A child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Where the child will live with both parents, joint physical custody is ordered, and both parents are custodial parents. Where the child will only live with one of the parents, sole physical custody is ordered, and the parent with which the child lives is the custodial parent, the other parent is the non-custodial parent.

Non-Custodial Parents

A non-custodial parent is a parent who does not have physical and/or legal custody of his/her child by court order.

A child-custody determination means a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child. The term includes a permanent, temporary, initial, and modification order. The term does not include an order relating to child support or other monetary obligation of an individual. Where the child will only live with one of the parents, sole physical custody is ordered, and the parent with which the child lives is the custodial parent, the other parent is the noncustodial parent.

Note, however, where the child will live with both parents, joint physical custody is ordered, and both parent are custodial parents.