Child Custody Basics

By Jeremy Liem

 

Whether you are in the process of a divorce, or have a child from a prior relationship, a court will have to decide the manner in which the parents will share custody of the child.  Custody comes in two forms:  Legal Custody and Physical Custody.  Both are determined by the "Best Interest of the Child" legal standard.  This legal standard is also used to determine whether a parent will be awarded Visitation Rights, and how much.

 

Legal Custody

 

When a parent has Legal Custody, they are allowed to make important decisions in a child's life, including medical decisions, choice of school, and religious instruction.  In most cases, Legal Custody is awarded to both parents.  This is called Joint Legal Custody.

 

Physical Custody

 

A parent has Physical Custody of a child when the child lives with that parent.  A common arrangement is for one parent to have Sole Physical Custody while the other parent has Visitation Rights.  It used to be more common for parents to share Joint Physical Custody, and courts commonly award Joint Physical Custody on paper when in fact the arrangement is more similar to one parent having Sole Physical Custody and the other parent having Visitation Rights  The most common arrangement now is for one parent to have a child during the week, and the other parent has the child on the weekends.

 

Visitation and Primary Caretaker

 

Parents are often awarded Visitation Rights when the court does not award that parent Physical Custody.  A parent with Visitation Rights will usually have Legal Custody as well.  Even if a child custody order states that parents share Joint Physical Custody, if a child does not spend almost exactly half of the time with each parent, courts have generally interpreted the arrangement as Sole Physical Custody and Visitation Rights.  The parent that has the child the most can be interpreted as the Primary Caretaker, which comes with extra responsibilities.

 

Best Interest of the Child

 

The "Best Interest of the Child" standard is the legal standard used to make custody determinations. When determining what is in the best interest of a child, courts consider a number of factors, including:

 

  • The child's wishes (if they are old enough)

  • The parents' mental and physical health

  • Maintaining a stable home environment

  • School and community ties

  • History of excessive discipline or abuse

  • Relationships with extended family members

  • Religion and cultural considerations

 

If you would like to know more about child custody laws, or if you need help establishing or modifying child custody, please call our firm or send a message in the form below.