Child custody laws vary from state to state. Some states, like Illinois and Colorado, have abolished the term “custody” in divorce. In most states, however, the concept of child custody is vitally important in divorce.
Physical Custody and Legal Custody
There are two aspects to custody: legal custody and physical custody.”Physical custody”is also known as “residential custody.”
Residential custody is the place where a child primarily lives most of the time. Physical custody refers to who actually has a child (i.e. who is a child with at any given time).
“Legal custody” involves the right to make major life decisions for your children – things like where they go to school, what religion they will be raised in, and what medical care they will receive.
There are two types of legal custody: joint custody and sole custody. Either both you and your spouse will share the right to make decisions about your children after your divorce, or only one of you will have the right to make decisions about your children, without input from the other parent.
If you and your spouse are going to have joint legal custody, that means that the two of you must be able to communicate with each other about your children after your divorce. You don’t need to be best friends, but you must be able to work with each other for the benefit of your children. If you can’t do that, joint legal custody is not going to work.
Even if you and your husband share legal custody of the children, however, the kids have to live somewhere. That means that one or the other of you will probably have to be designated as the primary residential custodian of the children. The non-custodial parent will then have visitation, or “parenting time” with the children.
Shared Custody and Split Custody
Shared custody, which is also sometimes referred to as joint legal and joint residential custody, refers to the situation where parents share time with the children and decision making responsibilities for the children equally. This type of arrangement tends to work best for older children. It is not age-appropriate for newborns and infants.
Split custody can be an option in families with multiple children. In a split custody situation, one parent will be given residential custody of certain children, and the other parent will be given residential custody of the other children. The parents can either have joint legal custody of all of their children, or they can split legal custody of their children too.
Courts do not favor splitting child custody. They don’t like to divide families and separate siblings. However, in some cases, particularly where one sibling has special needs or the siblings do not get along at all, separate custody may be an option to considre.
Many judges also do not like shared custody. However, many parents are now demanding equal time and equal decision making responsibility for their children. Whether shared custody is possible depends upon the laws of the state in which you live, and the culture of the courts in your area.
Getting Joint or Shared Child Custody
Getting joint custody of your children is no problem as long as you and spouse agree on it. Courts will also generally respect any parenting time schedules that parents can agree upon. So, if you want to divide your children’s time 50/50 between you and your spouse, if your spouse agrees, that should not be a problem either. Whether you can convince a judge to call that arrangement “shared custody” or not will depend upon your judge and the law in your state.
If you and your spouse can not agree that you will have joint custody, whether a judge will order you to have joint legal custody will depend on your state’s laws and on the judge. Some judges are predisposed to order joint custody unless someone gives them a good reason not to do so. Others will not order joint custody because they reason that, if parents can not get along well enough to agree on whether they should have joint custody or not, then if the judge orders it, joint custody is not going to work.
Parenting Time and Child Support
Depending upon the laws of your state, the amount of time you have physical or residential custody of your child may affect how much you pay or receive in child support. However, it is important to remember that parenting time and child support are always independent. That means that, just because one parent may not pay child support as ordered by the court, that does not give the other parent the right to withhold parenting time from the non-paying parent.