Divorce & Custody Options

by Beverly Bird
Shared joint custody means your children will spend a lot of time moving between your homes.

Shared joint custody means your children will spend a lot of time moving between your homes.

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You might have heard horror stories from other divorced parents about how little time the judge gave them with their children -- but the truth is that courts much prefer that you and your spouse arrive at your own parenting plan. All the judge knows about your family is what he reads in your court documents and what he hears in testimony. As parents, you and your spouse are intimately familiar with your family's dynamics and you know what's best for everyone involved.

Legal vs. Physical Custody

Whether you're trying to negotiate a custody arrangement with your spouse or you plan to ask the court for custody, you'll need a firm understanding of what you're asking for. The term "custody" doesn't mean anything by itself, because most states recognize two kinds of custody. Legal custody gives you the right to make important decisions on your children's behalf. These include fundamental issues like medical care and education. Physical custody refers to which parent your children will live with most of the time, and the other parent will have visitation.

Shared or Joint Custody

If you and your spouse decide to share physical custody, you'll be asking your kids to move regularly between your residences; they'll spend roughly an equal amount of time with each of you. If you want to share legal custody, this requires that the two of you maintain a civil relationship post-divorce for the sake of the children. You'll be in frequent contact with each other so that you two can make joint decisions about important issues.

Hybrid Custody Arrangements

You and your spouse can elect to share one type of custody -- but not the other. For example, you might not want your kids to live in a constant state of upheaval, moving between homes, so you'll give physical custody to your spouse. You can still share legal custody if you want to be actively involved in raising them. You can share physical custody, but give your spouse sole legal custody. Many divorce decrees include these hybrid arrangements. One parent commonly has primary physical custody, the other has visitation, and they share decision-making rights.

Split Custody

Split custody is a physical custody arrangement where one or more of your children live with you, and the others live with your spouse. For example, if you have a teenager who is about to graduate from high school, you might not want to force him to relocate to a new school district at such an important time in his life. You and your spouse might agree that he'll continue living with you in the marital home so that he doesn't have to move, and your spouse will move to a new residence and take custody of your other children. Generally, courts will not order split custody unless you request it, because they don't want to break up siblings. However, if you can show that you can make it work and that it would be in the best interest of the children, you can include the terms in a marital settlement agreement.

Bird Nest Custody

If you want to share physical custody but you don't want your kids to have to move back and forth, there's another option – bird nest custody. It's rare, and it might require a bit of sacrifice on your part, but your kids can stay in the home – presumably the one where they grew up – while you and your spouse move in and out to exercise your custodial time. This type of arrangement isn't for everyone, and it can get expensive. If you and your spouse can't stay with relatives during the times that you're not in residence with your kids, you'll need three separate homes – one for each of you, plus the communal home for the family. If you eventually remarry, your new spouse would either have to move in and out of the family home with you, or live without you for blocks of time while you're the custodial parent.