If you are involved in a custody battle, you will start to hear a lot of legal jargon as the case proceeds. Two terms you will hear and that you absolutely need to understand are legal custody and physical custody. It may seem confusing, but you can actually share legal custody while not sharing physical custody.
What is Legal Custody?
This refers to the types of decisions that are made on a daily basis for your children. Examples of this would be medical care, schooling, insurance, discipline, and religious beliefs. In all likelihood, regardless of the actual physical custody, and assuming there are no extra-ordinary circumstances, you should be awarded joint legal custody.
If you and your spouse are already on the same page where the children are concerned, moving forward should not be that difficult. However, in some cases, legal custody points become a major problem for divorced couples. For instance, during the marriage, the father left all schooling and medical decisions up to the mother. All of a sudden, he decides he does not like the doctor the kids are seeing or the school they are attending. You can see how this can get ugly very quickly.
Is Sole Legal Custody Ever Awarded?
Yes, but in some cases, the parents actually bring it upon themselves. As discussed above, when parents cannot agree, the judge will be forced to give one parent sole legal custody. In other cases, this is not avoidable. Some other example of why a judge would order sole legal custody would be if one parent lived across the country or in a different country. Another example would be a parent that was abusive. In some cases, you may have a parent that is simply not interested in the lives of the children, so he or she would not be given any say in the decision that affect their day-to-day lives.
What is Physical Custody?
While legal custody revolves around the daily decision of the children’s lives, physical custody revolves around where the children will actually live. This is a very important decision and could affect your relationship with the children in the future if you lose custody.
Types of Physical Custody
In most cases, you will have joint physical custody or sole custody with visitation rights. Some parents will forego the fight and give up on joint custody, but what they do not realize is that they may be giving up the right to even be in their children’s lives in the future.
Joint Custody – most judges would prefer this be the case. If you are a parent and want joint custody but don’t think you will be able to do a 50/50 split, it should not deter you from fighting for custody. In fact, this is a common occurrence in custody cases. The basis behind this type of custody is that both parents continue to actively raise their children and the children will spend time living at each parent’s home, not just visiting, regardless of the actual ratio of time spent at each household (50/50 custody is not realistic unless the parents live very close to each other, allowing the children to attend school regardless of which home they are in at the time).
Sole Custody with Visitation Rights – this type of arrangement simply works for some people. One parent remains the primary caregiver while the other parent is active and sees the children, he or she does not have them in their custody other than “scheduled” time, such as a week night dinner or a weekend. The problem here, though, is that if sole custody is awarded and that parent decides to leave, the only way you can fight the move would be to go back to court and win joint custody or prove the move is not in the best interests of the child.
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My brother is thinking about getting a divorce recently but he is worried that he won’t be able to get custody even though his wife isn’t a great parent. I think that it’s good that most judges prefer to at least give joint custody of the kids. I think that he should find a really good lawyer that is able to fight for him in court so he can see his kids most of the time.
Yes, he should hire an experienced divorce attorney that can ensure he gets joint custody and hopefully shares parenting time with his soon to be ex-wife.
He does, however, need to begin organizing things and taking daily bullet point notes (short and sweet – not long paragraphs!) with dates so that he can document incidents, even if small (such as: wife spanked kids this day, dad brought kids to doctors appointment that day, etc.).
This is not to approach things to start a fight, but to have it in case a fight takes place.
Have him speak with an experienced local divorce attorney right away and best of luck to him and his family.
I’m glad you mentioned that physical custody would affect where the kids live. I would think that you would want to focus on getting that if you want to see your kids often. I’ll have to get a lawyer if I get divorced so that I could have the best chance possible of getting physical custody of my kids.
Absolutely true. Getting a 50/50 split of parenting time is ideal when both parents are good, but definitely not a guarantee. The goal is to get more than 50/50, and then work towards an amicable settlement of 50/50, that is good way to approach things so that you can spend a lot of time with your kids.