What is Legal Custody?
Legal custody refers to the right to make decisions about important aspects of a child’s life. Legal custody can be the joint right of both parents, or it can be held by one parent alone. Parents with joint legal custody have equal rights when it comes to making major decisions for a child. In cases where legal custody is given to a single parent, that parent has the sole right to make these determinations. Although it will not play any role in a decision about physical custody, a child’s preference about which parent to live with in a divorce or separation situation may be taken into consideration. But the law treats these preferences differently depending on the age of the child. Children between the ages of 0-11 have very few input rights. For children between the ages of 12-17, the weight of that preference increases as the child ages. At 18, the child is considered to be an adult and has the full right to make their own decisions about where they will live and with whom. As noted above, parents may have joint legal custody, or the court may award sole legal custody to one of the parents. Sole legal custody awards a single parent the right to make these choices unilaterally . Joint legal custody, however, can become complicated when parents cannot agree on important choices. Examples of joint legal custody conflicts include the following: If parents who have joint legal custody cannot reach an agreement about one of the issues above, the matter will eventually have to be resolved by the court. It is important to realize that legal custody is not permanent, and it can change in the future if the appropriate changes to the situation have occurred. The guidelines for amending legal custody arrangements are the same as those for modifying primary physical custody. Custody agreements can be modified if both parents agree, or if one of the parents files a request with the courts. When making a modification argument, there must be a substantial, lasting change of circumstances that requires change. Custody agreements are designed to ensure that children maintain regular contact with both of their parents, leading to a better quality of life overall. If you are concerned about your rights because you do not have legal custody and you wish to pursue these issues through the courts or the mediation process, a family law professional can help process this request through the relevant authorities.
What is Physical Custody?
Physical custody refers to the actual day-to-day caretaking of children. When we talk about physical custody, it is in a strict sense – who has the right to physically have the children in his or her actual physical presence. Much like how we think of real estate on a deed, it is having the "kids in that particular location on that date."
Physical custody can have several different variations. It can be joint with the parents switching the children on specific days. It can involve the children spending a large majority of the time with one parent and smaller amounts of time with a second parent. It can involve the children spending equal time with both parents as is the case with a 50/50 split in time with each parent. In most circumstances where there is a "normal, healthy relationship" between the parents if we do not have a concern we prejudged the case to be a split between parents, usually with the first week of school being a switch for the first week of school, etc. Effectively, a week on, week off scenario that you see with a lot of divorced parents. But it can be done all sorts of ways.
There is a difference between having physical custody of a child and having primary physical custody. Primary physical custody means that you almost always have the physical presence of the child, the child resides with you 95% of the time. Physical custody would involve a 55% – 45%, or 65% – 35% split, for example. The point of the custody arrangement is to ensure that both parents are able to be involved in the child’s life in the appropriate amount of time to ensure that both parents can parent the child when it is the appropriate time.
Legal Vs. Physical Custody: The Primary Distinctions
Legal and physical custody are different in many ways. The most generally understood difference is that legal custody refers to who has the right to make decisions about the child’s upbringing, while physical custody relates to where the child lives most of the time. Parents can hold both legal and physical custody of a child, and determining who will hold these definitions is a crucial part of any divorce or separation process.
Legal custody. When a parent holds sole legal custody over a child, they are the only one who gets to make decisions regarding them. An example of this could be making a decision about whether to join a sports team or move schools, which can often affect where that child lives. A parent who has sole legal custody can make these decisions without input from the other parent.
However, there are situations in which parents have joint legal custody. This means they must come to an agreement on important topics in the child’s life. If this is the case, it is critical that the two parents are on good terms, as it can be very difficult to raise a child together if the two are constantly at odds with one another. Discussing any potential custody plans with a family lawyer can help you build the best case for yourself and your child.
Physical custody. Physical custody refers to whom the child will spend most of their time with. It is common for one parent to have primary physical custody of a child, while the other has split custody. This is usually the way that custody filings start, although changes can be made throughout the process of divorce. Having child custody duties and the responsibilities that come with them split, however, is becoming increasingly popular.
Here are some important things to note about legal custody and physical custody: It is very important that you understand the differences between legal custody and physical custody. You might think they are one and the same, but in fact, they are much more complicated than this. With so much at stake in any divorce situation for your child, it is recommended that you do not go through a legal process on your own.
How Courts Determine The Type of Custody
In deciding custody, the court’s main concern is the best interests of the child. When determining legal custody, Michigan courts will look at the ability of each parent to communicate, cooperate and agree on the important decisions regarding the health, education and welfare of the children. Put simply, a court does not have to award joint legal custody even if the parties agree to it and the court believes it is in the child’s best interests. When comparing two parents for sole legal custody, a court will consider: the ability of each parent to function independently and to make decisions jointly with the other parent, and the extent to which the parent will be open to maintaining a future working relationship with the other parent.
In situations where abuse is present, a court can award sole legal custody to the victimized parent with limited or no parenting time to the offending parent. A court can also order that the limited or no parenting time be supervised by family or friends or by an agency such as Friend of the Court. A court may also limit when a parent can obtain unsupervised parenting time, such as only in the day time hours and forbid the offending parent from spending overnight time with the children until the parent undergoes therapy, demonstrates success in changing behavior and the offender is approved for overnight parenting time.
Joint Versus Sole Legal and Physical Custody
Joint Custody vs. Sole Legal and Physical Custody
As with many issues in family law, parties have common misunderstandings about the meaning of certain terms. For instance, parties often use the phrase "physical custody," however they typically mean "legal custody" or "joint legal custody." In addition, there are other phrases that people "throw around" with little regard to what they actually mean. For the sake of clarity, we will define these terms below.
Legal Custody: The right to make decisions regarding a child’s health, education, religious upbringing, and such other matters relating to the general welfare of the child.
Sole Legal Custody: The time when either parent has the exclusive right and responsibility to make final decisions’ regarding major long-term issues.
Joint Legal Custody: The right of both parents to make decisions regarding the health, education, religious upbringing, and such other matters relating to the general welfare of the child.
Physical Custody: The physical residing arrangement of a child or children.
Sole physical Custody: The right of one parent to have the child reside continuously in their home subject only to the reasonable rights of the other parent to visit or have contact with the child.
Joint physical custody: When a Child resides alternatively and on a temporary basis with each parent according to a definite and specific court-ordered schedule.
Sole legal custody is when one party has the right to make the decisions for the child and sole physical custody is when the child resides with one parent only. Joint legal custody is when a parent does not have sole legal custody. Joint physical custody is when a child resides with one parent for specified periods of time only.
Research indicates over and over again, joint custody is better for children. Children who reside in joint physical custody with their parents tend to do better academically, socially, and emotionally. Parents who have joint legal custody are also more satisfied with parenting when compared with parents who have sole legal custody.
The Research
According to a 1996 study from Columbia University titled Nontraditional Living Arrangements and the Development of Children of Elementary School Age, Dr. Judith Seltz found children of nonintact families settled into joint custody arrangements as well as daily parenting arrangements better than children in mother or father custody arrangements. As a result, Dr . Seltz found there was statistically less behavioral problems among children in joint custody arrangements.
A 1997 study from Université de Paris-Sud titled Non-custodial parent and children: role of social integration reviewed the relationship between noncustodial parents and their child after a divorce. The study controlled for factors such as the profession of the non-custodial parent, the amount of the non-custodial parent’s education, the non-custodial parent’s income, the number of friends the child possesses, and the child’s level of satisfaction with life and concluded that a better relationship was evident when the child lived in joint custody compared with children who lived with only one parent.
According to a 2008 study titled Effectiveness of joint custody on reducing the negative consequences of family dissolution on children: A meta-analytic review of published research, by William L. Fabricatore and Adrienne S. L. Brimacombe, reviewed 21 studies involving more than 4,800 children. This study found that children who lived in joint custody exhibited fewer behavioral difficulties and showed a lower tendency toward depression. In addition, children in joint custody reported feeling higher satisfaction with life than children living in sole custody arrangements.
A 2001 study titled The longitudinal effects of parental divorce on children’s academic attainment, race differences, and mediating factors, the article reviewed qualitative and quantitative studies and concluded that children who reside in joint physical custody are more likely to succeed academically than children who do not reside in joint physical custody.
The Takeaway
Organizations all over the world note the importance of fathers remaining actively involved in the lives of their children. The National Conference of State Legislatures and the National Fatherhood Initiative, both list statistics and other information that note children with fathers involved in their lives benefit greatly. According to research from the US Department of Health and Human Services, children who live with their fathers have better educational outcomes, are less likely to use drugs, and have improved psychological wellbeing than children without fathers.
The facts are clear. If parents agree to joint legal and physical custody of their children, child outcomes are overwhelmingly better than parents who do not agree to joint custody. As a result, parents should take great care when considering their custodial arrangement because it can have lifelong effects on their children.
Changing the Custody of a Minor
As time goes by, a parenting arrangement agreed to by the parents may need to be modified due to the different circumstances of the parents or children. An agreement to change the custody provisions will be binding upon the parents, however if the parent cannot agree to the change, the Court may modify the existing agreement. To modify the substantive terms of a Consent Order governing the custody arrangement or to modify the legal or physical custody of a child, a petition must be filed with the Family Division of the Court of Common Pleas in the county where any of the parties or the child reside. The petition must allege a substantial change in the circumstances which justifies the modification. The petition will be assigned to a judge in the Family Division of the Court and a hearing will be scheduled before that judge at which time the judge will hear evidence. The judge can then modify the custody provisions in accordance with what he or she believes is in the best interest of the child.
How Different Custody Types Affect Kids
The type of custody arrangement parents choose to live under can have profound effects on a child’s emotional and psychological well-being. Studies show children tend to fare better psychologically when they are able to maintain a close relationship with their nonresidential parent. But this positive effect only manifests if the child spends sufficient time with that parent, which in turn depends a great deal on the terms of the type of physical and legal custody awarded to each parent.
With joint physical custody, for example, the child has the opportunity to spend significant time with each parent, allowing the child to develop equally strong emotional bonds with them. Primary physical custody, on the other hand, keeps the child with the residential parent while cutting off or restricting the child’s ability to see the other parent. This has the potential to negatively affect the child, who by nature is a social creature that seeks comfort in familiarity as well as in the company of others.
Professor Robert Bauserman at the International Academy of Collaborative Professionals has documented the general lack of understanding of the importance of contact with both parents in the healthy emotional development of children. Bauserman cites an extensive body of research on the topic, including two meta-analysis studies — one by Kelly and Lamb in 2000 that covered the previous 15 years of research, and the other by Bauserman himself in 2002 that summarized and later spoke to the Kelly/Lamb findings.
The bulk of the evidence indicates that children want to be equally involved with both parents, and thriving most fully when they are able to achieve this. Bauserman offered the expert opinion that "the greater the time with both parents, the better off a child is in several areas." Specifically, he wrote that it is far more important for a child to have meaningful contact with a nonresidential parent than it is for that parent to have small amounts of time with the child if the child is otherwise with the residential parent.
Learn About Your Options for Legal Custody
Seeking professional legal advice is important when it comes to making any decisions about a child’s future or the specifics of a custody arrangement. A family law attorney should be able to provide parents with an understanding of how the laws apply in their specific case, and whether the other parent is likely to be cooperative with the way the case is proceeding. Legal advice can also be of benefit to those who are getting divorced, since it may be necessary to update custody arrangements that were previously made while the parties were married.
A divorce attorney in Vero Beach understands the laws in this area, as well as how they are applied locally. Every county in Florida may be slightly different, which is why consulting a local lawyer is so important. In addition , an attorney can provide parents with options at different points in the dispute, such as if they are starting out with negotiations, filing for mediation, or heading for a trial. Having an attorney who can provide guidance on points such as these can help parents with maintaining an appropriate schedule and accommodating the best interests of the children.
When making decisions about divorce or child custody, it is sometimes possible for both parents to agree, and other times it is not possible to agree. This can have a large impact on what will occur in the future, especially if a case is in dispute at the outset. Since many factors can influence the outcome of a case, a lawyer can provide assistance by evaluating some of the circumstances and providing additional information.