Sole Custody Vs. Joint Legal Custody

By Beverly Bird

When you’re going through a divorce, it might seem like everyone has some advice to give. The problem with unequivocally believing whatever they say is that they might not have a firm handle on the legal meaning of various divorce terms. If you have children, it can benefit you to fully understand all the terms involved in custody so you know what you're requesting and how it will affect you and your children.

Sole Custody

Sole custody is one of the trickiest phrases in divorce law because there are two types of custody – legal and physical – and the term might refer to one or both. In some states, such as Illinois and New York, it relates only to legal custody; it does not address with whom your children will live most often. This is in contrast to Indiana, where sole custody means your children live with you most of the time and you also have full legal custody. Depending on where you live, you could go to the wall fighting for full custody as part of your divorce, only to realize that what you've won is legal custody and your children will spend half or more of their time with your soon-to-be ex. With joint legal custody, you might find that your children live with you and have visitation with your ex, but the two of you must cooperate to make major decisions on their behalf.

Sole Legal Custody

If the court grants you sole legal custody as part of your divorce action, this means you're the only parent who can make major decisions on behalf of your children. Major decisions include those that are fundamental to their upbringing – like what schools they attend, what physicians they see, and whether they're actually mature enough to drive when they're old enough for a license. A court typically needs a compelling reason to award sole legal custody to one parent. For example, in Ohio, you and your spouse might be suffering through such a contentious divorce that the judge can't envision the two of you ever being able to work together for the best interests of your children, so he will grant legal custody to just one parent. Even if you're awarded sole legal custody, some states, such as Ohio, limit your decisions to those that have no significant economic effect on your ex.

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Joint Legal Custody

Joint legal custody means that you and your spouse must cooperate and work together to raise your children after your divorce is final. You'll consult each other on issues of health, medical care, education, religion and important events in your child's life. If you don’t agree on a major decision, depending on your state's laws and your particular custody agreement, you may have to go back to court to break the impasse. In some states, such as Massachusetts, you and your spouse have joint legal custody by default after you file for divorce; this lasts until an order or decree is issued that states otherwise.

Physical Custody

Physical custody is separate from legal custody. It refers to the parent with whom your children live the majority of the time. Different states may use different names for this type of custody. For example, in Illinois, it's called residential custody. In New Jersey, one spouse is the parent of primary residence and the other is the parent of alternate residence. Unless you have joint or shared physical custody rights, your children will spend most of their time with the residential or primary parent and have visitation with the other – regardless of the legal custody arrangement.

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What Does Full Custody Mean?


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Illinois Visitation Rights

In Illinois, when you divorce your spouse, the court will establish a custody and visitation order as part of the divorce decree. Typically, visitation rights are granted to the parent with whom the child does not live most of the time; however, visitation will only be awarded if it is in the child's best interests. Although you can leave it up to the court to decide your family's custody and visitation arrangement, you also have the right to create your own parenting plan, if you and your spouse agree.

What is the Process to File for Child Custody in New Jersey?

Filing for custody in New Jersey is as easy as including the request in your complaint for divorce. From there, the process becomes a little more complicated. New Jersey courts don't want to decide custody issues for you if they don't have to, so the state mandates some procedures to help you try to reach an agreement with your spouse on your own.

Why Does a Parent That Doesn't Have Custody Have to Pay Child Support?

Just as you support your children financially while you're married, you must continue to do so when you divorce. The major difference is that if you divorce, the government keeps a watchful eye on whether you're paying – at least if you're the non-custodial parent. Child support is designed to ensure that your children enjoy the same standard of living as they would have enjoyed if you and your spouse didn't break up.

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