Determining Child Custody

Physical Custody

Generally speaking, an award of child custody to a parent is either physical custody or legal custody, or both. When a parent has physical custody, as the name implies, the child resides with that parent. Residence generally means more than 50% of the child’s time is spent at the residence of a parent. For a child of school age, residence dictates school district.

Legal Custody

Legal custody imparts the right and obligation to make major life decisions for the child. Traditionally, the custodial parent made major decisions for the child and housed the child. It is now increasingly common, however, for legal custody to be shared so that major decisions are made by both parents together. This arrangement, called joint custody, requires unanimous decision making. It is not for everyone, as it requires a great deal of communication and mutual respect, to say nothing of common goals for the child. Of course, even in the best of cases, disagreements that cannot be resolved may arise, requiring that the parties either litigate or attend some form of alternative dispute resolution.

Shared Custody

Shared custody is also increasingly common. This refers to an agreement in which the parents share physical custody on an equal or nearly equal basis. For many parents who have built their lives around their children, when it comes time to separate it is hard to imagine having anything less than 50% of their child’s time. However, it is not something that works in every situation. It works best when the parties will be living near to each other after they separate and, for elementary school age children, preferably in the same area of the same district so that the child or children can take a school bus home to both parents’ residences. Shared custody also requires that both parents have sufficient financial resources to afford reasonable accommodations at both residences.

Split Custody

Split custody refers to a situation where one parent has physical custody of one or more of the children and the other parent has physical custody of the other child(ren). This arrangement is less common, as Courts generally disfavor splitting up siblings, but may be appropriate in some circumstances.