Divorce & Custody Facts

by Mike Broemmel
Child custody issues are resolved by agreement of the parties or court order.

Child custody issues are resolved by agreement of the parties or court order.

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In many instances, issues related to child custody represent the most contentious matters between spouses in a divorce case. If you contemplate divorce, you must educate yourself on the basic facts associated with child custody, including essential terminology. By understanding these basic elements of child custody, you position yourself to best protect your interests, and those of your children, throughout the course of the divorce proceedings.

Legal Versus Physical Custody

Legal custody represents the ability of a parent to make major life decisions on behalf of a minor child. These include decisions associated with, but not limited to, education, health care and religion. Physical custody is the right of a parent to have actual custody of a child, typically in that parent's residence. Custody orders or agreements address both of these types of custody.

Joint and Sole Custody

Legal and physical custody can be shared jointly or awarded solely to one parent. Joint legal custody exists when both parents share equally in making major life decisions for a minor child. Joint or shared physical custody occurs when both parents maintain the child in their residence part of the time. Sole legal custody represents an arrangement in which only one parent possesses the right to make major life decisions for a child. Sole physical custody represents a situation in which only one parent maintains physical custody of a child.

Preference for Joint Custody Arrangements

Family law generally disfavors sole custody. Sole custody may be awarded in situations in which one parent is deemed unfit or unable to exercise appropriately the rights and responsibilities associated with legal or physical custody of a child. However, just because a parent is awarded sole physical custody does not mean she will automatically receive sole legal custody as well. In other words, although a parent may not provide a residence for her child on a consistent basis, she still may be capable of making appropriate decisions on behalf of her child.

Best Interests of the Child

In family law cases, including divorce proceedings, courts across the United States apply what is known as the "best interests of the child" standard. This standard requires a court to consider what legal and physical custodial arrangement best protects and furthers the interests of a minor child. Considerations often include which parent traditionally provided primary care for the child, physical and mental health of both parents, and the willingness of each parent to co-parent with the other parent.

Custody and Desires of a Minor Child

State laws vary regarding what effect the desires of a child have on custody decisions. In some jurisdictions, the wishes of a child have no bearing, under the theory that a minor child is not legally capable of making such determinations. On the other hand, other states permit a child to express his wishes regarding custody arrangements, particularly if he is mature or an older child. Overall, however, the desires of a child generally do not control custody determinations.