Child custody is one of the most important decisions you’ll need to make in your separation agreement. Here is an overview of how child custody works and some of the main definitions you’ll want to know.

By Diana Shepherd, CDFA

The first thing you need to know about child custody is that it has two components: legal and physical.

Although the terms may vary between jurisdictions, generally speaking, sole legal custody means that one parent has the legal authority make all major decisions involving his/her children – including where they will go to school, which elective surgeries or other non-emergency medical services they will receive, and any other major decision affecting their health and welfare.

Joint or shared legal custody means that both parents have an equal say in all major decisions about their children’s lives. Very few parents who have been involved in the day-to-day raising of their children are willing to surrender all authority for making decisions to the other parent; this is more likely to occur in situations where they have not been involved in the children’s lives (owing to lack of interest, the fact that they live in another country, are in jail, or some other factor that has weakened or severed the parent-child bond).

Physical custody can be sole, split, or joint/shared (the terminology varies by jurisdiction, so make sure to become familiar with the correct terms for your area). Sole physical custody means that the children will reside with one parent most or all of the time; split physical custody means that one parent has custody of one or more of the children, and the other parent has custody of the remaining children; joint or shared physical custody means that all the children will divide their time between both parents according to an agreed-upon ratio (e.g., 60/40).

For many years now, divorce-industry professionals as well as divorcing couples have been using the terms “custodial parent” and “non-custodial parent” to describe the living situation for children post-divorce. These terms reflected the belief that the children would reside with one parent and that the other (non-custodial) parent would be given “visitation rights” in the divorce agreement; visitation might or might not include a certain number of overnight stays per week or month with the non-custodial parent.

These days, however, it is increasingly common for parents to share physical custody of their children – 50/50, 60/40, or any other ratio in which children spend almost equal amounts of time living with each parent. If one parent has the children for longer than the other (e.g., 60% of the time), some courts will describe them as “primary” and “secondary” parents. These days, most parents share physical as well as legal custody of their children – although the children may reside with one parent more than the other for practical reasons (e.g., proximity to school, or one parent’s job involves frequent travel, etc.).

Before you finalize your parenting plans, you should know that physical custody affects child support. In the case where the children live with one parent most or all of the time, the other will probably be ordered to pay child support based on his/her state’s or province’s guidelines. In a shared custody arrangement, the percentage of time the children reside with each parent can change the rules for child support.

You should try to work out an arrangement for physical custody that works for both you and your soon-to-be-ex-spouse and has your children’s best interests at heart. If you can’t work it out yourself, consider working with a mediator or parenting professional to help you find a solution. In mediation, a neutral professional meets with both parents to facilitate discussion and resolution. The mediator has no power to impose a solution on the parents – and both parents must agree to the mediated solution for it to become part of their divorce agreement. Many jurisdictions now require divorcing parents to attend mediation before they can bring a child-custody case to court. If you can’t reach an agreement, you will go to court and let a judge decide what is on your children’s best interests based on factors such as:

  • The child’s relative attachment to each parent
  • The age and sex of each child
  • The flexibility of each parent’s work schedule (including whether one has to travel regularly for work)
  • Each parent’s willingness and ability to care for (or to learn the skills to care for) their children
  • The parents’ willingness and ability to communicate and make cooperative decisions about their children’s welfare
  • Any special needs a child may have.

Bear in mind that no judge is ever going to understand your children and situation better than you do, so make every effort to resolve your differences (by yourselves, in mediation, or in lawyer-assisted negotiation) before taking your custody case to court.

Child custody is a complicated and hotly-disputed area in many divorces. Make sure you educate yourself about your rights and responsibilities before agreeing to anything in writing. Talk to a lawyer about how local judges are ruling before deciding to take you case to court. And finally, when child-custody is disputed, recognize that many parents are willing to lie or pull unsavory stunts to make the other parent look bad. If you can, try to have your children’s best interests front-and-center when you’re negotiating custody arrangements; a bitter custody battle can do enormous damage to your children and other family members for years to come.

Diana Shepherd, a Certified Divorce Financial Analyst® and Editorial Director of Divorce Magazine, has been writing about divorce-related issues since 1995.