Legal Issues in Parenting

Custody

When a couple becomes divorced and children are involved, custody is an inevitable issue. There are two kinds of custody: legal custody and physical custody. Legal custody refers to the fact that all major decisions are made by the individual(s) with legal authority to decide, based on the best interests of the child. Within legal custody, there are two types: sole legal custody and joint legal custody. Sole legal custody states that only one parent possesses the legal authority to make major decisions on behalf of the children. These resolutions are focused upon education, religion, and health care. On the other hand, joint legal custody refers to the fact that both parents possess the same legal authority to make decisions on behalf of the children. These decisions may include the type of education the children receive, type(s) of religion (or lack thereof) the children will be raised within, nonemer-gency medical decisions, etc.

Physical custody refers to a legally binding decision as to where the children reside for the majority of the time. Again, within this custody are three categories: sole physical custody, joint physical custody, and bird's nest custody. Sole physical custody means the children live with one parent at one physical location most of the time. Generally, the noncustodial parent follows a visitation schedule (in some states, the term is parenting time, alternative placement, or a parenting schedule) allowing for generous visitation rights; that is, the children may sleep over at the noncustodial parent's house. Joint physical custody is also called shared custody, shared parenting, or dual residence. With joint physical custody, each parent lives with the children for a specific part of the week, month, or year—the times and the length depending upon parental agreement. Normally, the children spend approximately the same amount of time with each parent. Bird's nest custody means the children reside at one central location, with the parents taking turns to move in and out of the children's residence on a previously agreed schedule.

Almost all divorcing parents choose shared parenting (joint physical custody), because it is the closest facsimile to the original parent-child family structure. Meanwhile, the law considers either joint legal custody or joint physical custody as the best custody option when both parents are deemed fit to raise the children. Another primary reason for the attractiveness of joint custody is that any major decision affecting the child is made by both parents—both parents must agree to any action involving the children.

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