Almost every child custody case has the potential to elicit a passionate exchange between parents. In some divorces, it’s how the children are being raised that divides Moms and Dads. Resulting in one or both of them wanting out of the marriage.
Because every family has different needs, the parties should focus on reaching an agreement that offers the best possible outcome for their kids. Seldom will these choices be easy to make. But parents need to go into divorce negotiations with a strong desire to create a custody plan that’s in the best interests of their children.
If they cannot reach an agreement, their now “contested” custody case continues the march toward a full-blown custody trial.
How Do Parents Decide Child Custody?
Today, more divorced or separated couples are sharing legal decision-making, even when one parent is designated as the primary physical custodian of the child. The states vary considerably on custody, but there is one constant: when parties cannot agree to a parenting plan, the court steps in and makes custody decisions for them. This is what both parents need to understand:
- Legal Custody. The parent with legal custody makes important decisions about his or her child’s education, religion, and health care. It is completely distinguishable from where the child will reside. Legal custody may be shared with parents making these core decisions together. If one party acts alone with joint legal custody, the other parent who was not consulted may ask the court to enforce her custodial rights.
- Physical Custody. In many states, one parent may be designated as the “primary physical custodian” or “primary residential parent” – the one who has the child living with him. The other parent has visitation, sometimes supervised visitation. The parent with physical custody is responsible for making the daily decisions that go with child-rearing and also makes urgent medical care decisions.
In some states, the line between physical custody and legal custody is not so easy to draw. Parenting roles continue to evolve, fathers stay home, mothers leave for work, and so on. The parties may find themselves discussing “parenting time” and “legal decision-making” instead. Parents in those jurisdictions still must decide how parenting time will be spent with their children and who will make important decisions over matters like schooling.
Either party may seek legal custody, physical custody, sole custody, or joint custody. One parent may be awarded sole legal custody with visitation, while the other parent gets sole physical custody. Or maybe they’ll share legal custody and parenting time 50/50.
Every family’s circumstances are unique. An infant needing a mother’s care. An autistic child who does best with his Dad. A teenage daughter who wants to stay in the same high school and graduate with her classmates. These are very important considerations. Is anyone in a better position to understand the nuances than the parents themselves?
Jennifer Mihalovich is a family law and child support and custody attorney in Chandler, Arizona. Stewart Law Group has offices throughout Arizona. The firm has helped many clients navigate the legal complexities of divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
