When going through a divorce, child custody is usually at the forefront of issues to be settled. Parents have to make the decision if they want the children full time, part time, or not at all. If the spouses can come to an agreement prior, it would obviously make the divorce go much smoother. However, when both parents desire the same type of custody, the battle can be very long and emotionally draining.
The first issue that must be brought to light is the difference between actual physical custody and legal custody of the child. The custodial parent, meaning the parent with whom the children will reside, has physical custody of the child. Legal custody denotes the parent’s ability to be involved in the life decisions of the child, such as where the kids will go to school, preferred religion, and the like.
Being granted sole custody in divorce, both physical and legal, is very rare. In fact, this decision is usually only handed down when one parent is deemed a danger to the child in some way. It should also be noted parents are also very rarely awarded joint legal and physical custody. Unless the parents are literally living around the corner from each other, it would be extremely difficult for the children to have any type of a “normal” life with full joint physical custody.
Generally, the children will primarily reside with one parent, but both parents will be involved in all life decisions. However, the parent with whom the children do not reside full time will still have visiting rights as well as weekend and/or holiday custody. For instance, the mother may be awarded physical custody, but the father is able to have the children with him two nights a week and every other weekend.
Due to the nature of custody in divorce, it is recommended that both parents use family law attorneys specializing in divorce and child custody. In addition to being able to give you a more realistic idea of what can and cannot happen during the case, he or she will also be able to help you keep emotions out of the equation. Both parents can negotiate through their lawyers and avoid “in person” confrontations that often happen in these types of cases.
Remember, the primary concern here is the overall well-being of the children. The last thing either parent should want is a child developing animosity towards one parent because their mother or father is trying to prevent the other parent from being with the children. Let your attorney handle the legal aspect of the case, and you worry about providing the best care possible for the children during this very emotionally difficult time.