Legal vs. Physical Custody
An important distinction exists between legal custody and physical custody. Legal custody has nothing to do with where your child will live post-divorce. It deals with whether you or your spouse will make important decisions on her behalf, such as those relating to schooling or elective medical care. Courts generally prefer that parents share decision-making when at all possible, ordering joint legal custody. Physical custody refers to which parent your child will live with most of the time, and courts are slower to award joint physical custody. This means children must bounce back and forth between parents' homes on a roughly 50-50 basis. A judge might sign off on such an arrangement, however, if you agree to it and if you make the request in a parenting plan filed with the court as part of your divorce. It's not likely that the court would issue an order for joint physical custody if one of you objects.
Best Interests of the Child
When courts must decide legal or physical custody, the judge's decision comes down to what's in the best interests of the child. This involves a list of statutory factors that a judge must weigh for each particular family. For example, one factor is often which parent was the primary caregiver during the marriage, because courts strive to keep some consistency in children's lives post-divorce. If mom was traditionally the caregiver, she'd "win" on this factor. Another consideration is often which parent is most like to facilitate an ongoing relationship for the children with their other parent. If mom has a history of interfering with visitation while the divorce has been pending, dad might "win" on this factor. Now the parents are tied – each is the preferred parent in one category. States' best interests lists usually involve at least 10 factors, however, and judges can give some factors more weight than others. In the end, one parent usually comes out ahead. That parent typically gets physical custody, while the other receives visitation rights instead.
Some states include a child's wishes in their best interests factors. This is rarely controlling – if all other factors favor the parent the child does not want to live with, this would override the child's preference. If parents are essentially tied, however, this factor could tip the scale toward the parent the child prefers, particularly if she is a teenager. A perfectly capable parent might be denied physical custody for this reason.
Factors Prohibiting Physical Custody
Some serious issues can make custody – or even visitation – dangerous or detrimental for a child, and these can trump other statutory best interests factors when they exist. For example, a parent who has been convicted of domestic violence may be denied custody, whether the violence was perpetrated against the child's other parent, the child herself, her siblings, or even another family. Drug or alcohol dependency can cause a court to deny custody, as can threats or attempts to kidnap the child and remove him from the court's jurisdiction. These issues might even extend to others living in your household, such as if you move out of the marital home and take on a roommate who uses illegal drugs or has a history of violence. Even in these cases, however, the court might only deny physical custody, not visitation. Public policy holds that children should have a relationship with both parents. Courts might order supervised visitation instead of no contact at all, where a neutral third party is always present during parenting time to ensure the safety and best interests of the child.