Considering Divorce? We've helped 85 clients find attorneys today.
In This Guide
- Physical Child Custody
- Legal Custody of Child(ren)
- Joint Parental Custody
- Split Child Custody
- Third-Person Child Custody
Child Custody Guide Topics
- Introduction to Child Custody
- Who Gets Custody?
- Going to Court
- Out-of-Court Custody Agreement
- Visitation Rights
- Modifying a Custody Agreement
- Custody Between States
- Emergency Custody Issues
- Hiring a Child Custody Attorney
- Adoption
There are a variety of child custody scenarios. It is useful to understand the possible types of child custody. In some cases, a judge may grant sole custody to a parent in a situation where the other parent is deemed unfit or unable to take responsibility for the child. When sole physical custody is awarded, one parent has the right to have the child live primarily with him or her. That parent is then known as the custodial parent. These instances are rare and limited to situations where there is neglect, drug or alcohol abuse, child abuse, a history of violence or mental instability. Courts most often award joint custody to allow both parents to develop a bond with their child, even when the bond between parents has been broken.
Physical Custody
Physical custody is defined as the right to have the child live with you. This involves the day-to-day care of the child and determines where the child will live. Physical custody is different than legal custody. It is important for the parents to distinguish between physical and legal custody prior to making their custody request. When the child lives primarily with one parent, that parent is recognized as the custodial parent with full physical custody or sole physical custody. The other parent is considered the non-custodial parent and would be awarded visitation rights.
Legal Custody
Legal custody of a child gives the parent the right and obligation to make decisions regarding the child's upbringing. These decisions include where a child will attend school, (private school, public education, or home schooling), the medical care they receive and what religion they will be brought up with. It also relates to the general welfare of the child. There are two different types of legal custody. Sole legal custody and joint legal custody. Joint legal custody is most often awarded unless one of the parents is deemed incapable of taking care of the child.
Joint Custody
When there is a joint custody arrangement, both parents share the responsibility for major decision-making. This arrangement allows for the responsibility to be shared without over burdening one parent. When the children are in the actual physical custody of a parent, that parent has the responsibility for ensuring that the children are fed and properly cared for and taken to school. That parent must also take responsibility for any medical or dental emergencies which arise. Joint custody means that parents share both joint legal custody and joint physical custody. This arrangement can be established either by a parenting agreement, or it can be ordered by the judge. A written joint custody agreement can be helpful to establish a foundation for a successful co-parenting relationship. It should be flexible to allow room for adjustment as the children grow and their needs change. Parents will need to make arrangements for financial support. Some agree to share this equally, while others pay the costs as they occur.
Split Custody
A split custody arrangement is where custody is shared equally or at least, the visiting parent has substantially more time with the children than in the customary visitation agreement. This type of custody can be divided on a week to week or monthly basis. One parent can be the custodial parent during the school year, and the other during summer vacation. There are some split custody arrangements where the children stay in the former family residence and the parents have separate residences and take turns moving in and out of the family residence to be with the children. This is also referred to as "Bird's Nest Custody", or "Bird Nesting". In certain situations, split custody may also be an option in which each parent takes custody of a different child. This arrangement is generally disfavoured by judges because they are reluctant to split up siblings.
Third Person Custody
A court can award custody of the children to a third-party if they have sought custody. Usually, this is a grandparent or other close relative. The third-party may have become the primary caregiver for a child or children when circumstances arise whereby the parents are unable to care for the children. This may be due to the death of the biological parents, or where both parents are deemed unfit. In order to file a non-parental custody petition, the third-party must meet two criteria. These are:
Adequate Cause
This requires that the mother and/or father meet the legal definition of unfit parents which can include abandonment, severe neglect, physical, emotional or sexual abuse of the child, drug or alcohol addiction, incarceration, or criminal activity.
De Facto Parenting
The third-party must already be acting in a parental role by providing shelter, providing for the child financially, and making decisions on behalf of the child on a day-to-day basis. A de facto parent can be a stepparent, a grandparent, godparent, family friend, or other relative of the child.
Third Person Custody is Not Permanent
As in any custody matter, third-party custody is not a permanent arrangement. The court can rescind or modify non-parental custody at a later date. Only the state can terminate parental rights. Biological parents who are determined to regain custody of their children often prevail if they can prove to the courts that they are no longer deemed unfit.