Types of Custody

Learn the difference between legal custody, physical custody, sole custody, joint custody and more.

Legal Custody

Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody to both parents, which means that the decision making is shared.

If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won't get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you -- which may harm the children.

If you think you have circumstances that make it impossible to share joint legal custody (the other parent won't communicate with you about important matters or is abusive), you can go to court and ask for a change in custody so that you have sole legal custody. But in many states, you will have to overcome a presumption that joint legal custody is preferable.

Physical Custody

Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents, when the child spends significant amounts of time with both parents. Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent. Joint physical custody works best if you live near the other parent, as it lessens the stress on children and allows them to maintain a somewhat normal routine.

Sole Custody

One parent can have either sole legal custody or sole physical custody of a child. In most states, courts are moving away from awarding sole custody to one parent. They often enlarge the role a father plays in his children's lives. Even where sole physical custody is awarded, often the parties still share joint legal custody, and the non-custodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.

Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.

It's understandable that there may be animosity between you and your ex-spouse. But it's best not to seek sole custody unless the other parent causes direct harm to the children. Even then courts may simply allow supervised visitation, while still ordering joint legal custody.

Joint Custody

Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:

• joint legal custody
• joint physical custody (where the children spend a significant portion of time with each parent), or
• joint legal and physical custody.

It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house or apartment. Other joint physical custody arrangements include:

• alternating months, years or six-month periods, or
• spending weekends and holidays with one parent, while spending weekdays with the other.

Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent. There are, of course, disadvantages:

• Children must be shuttled around.
• Parental noncooperation or ill will can have seriously negative effects on children.
• Maintaining two homes for the children can be expensive.

If you do have this arrangement, you should maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after school activities, clothing and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.

Bird's Nest Custody

Bird's nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own.