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Divorce: Custody

Mark Dombeck, Ph.D.

In the context of a divorce, the term "custody" refers to responsibility for a minor child. When a divorcing couple has minor children the division of child custody becomes a critical part of their divorce settlement.

Definitions and concepts

There are several types of custody that are important to understand.

  • Legal custody involves being able to make binding decisions on behalf of your child, such as whether a medical procedure should be attempted, or what school the child should attend. Legal custody doesn't have anything to do with being responsible for having the child live with you.
  • Physical custody, on the other hand, involves being allowed to have the child live with you and being responsible for taking care of the child. Parents who have no physical custody arrangements do not have a legal right to have their children live with them.

parents pulling on childThe two types of custody (legal and physical) are separable; it is possible to have one of them without the other being present. In most cases, parents who have physical custody over a child will also have legal custody over that child. It is common, however, for a parent to have legal but not physical custody.

Married couples are considered to be a joint entity sharing complete custody over their children. When a couple with children divorces they become legally separate entities who must now decide how custody will be divided between them. Parents who will be sharing custody have to arrive at a plan that the court will approve for how they will divide responsibility for caring for their children before their divorce can become final. Legal custody may be vested in one or both parents. Physical custody can be divided into percentage shares to reflect the percentage of time each parent will be responsible for actually taking care of their children. Physical custody may be shared equally, or one parent may take on the lion's share of physical custody with the other parent being guaranteed visitation rights. In extreme cases, one parent may be granted sole custody with the other parent's custody rights terminated. Joint physical custody tends to work best when both parents continue to live in the same town so that shuttling children between households isn't difficult, and school arrangements can remain undisturbed.

However arrived at, custody decisions are ultimately made legitimate and enforceable by virtue of a court decision. Once the court has made a custody decision, that decision can only be altered by another court decision, and then only when compelling reasons exist for why the earlier decision should be altered. Because revisions to custody decisions are difficult to obtain, it is important that divorcing parents take special care to optimize custody arrangements so as to maximally benefit their children.

Planning for custody division

Court battles over custody are both expensive and emotionally stressful, and may necessarily (and harmfully) involve children in the divorce process. Decisions concerning custody are thus best worked out between the divorcing parents, with the assistance of a mediator if that proves helpful or necessary. A workable plan should describe where children will live, how each parent will remain in contact with the children, how children will be financially supported, how important decisions will be made regarding children's welfare, and how changes will be made to the custody plan as they become necessary. The custody plan should be written out and signed by both parents so that agreed upon arrangements are clear and public.

If parents cannot come to agreement over custody issues, the courts will impose a binding plan for custody on the parents. In creating such a plan, the court will usually take a number of factors into account including:

  • parental gender, child-rearing interest and preferences with regard to parenting
  • parental characteristics and fitness (emotional, professional, economic, etc.) to provide for children
  • children's age and maturity (and preference if they are old and mature enough to testify articulately)
  • the quality of relationship between each parent and child, and between siblings
  • whether altering children's present living conditions would harm them
  • what third party expert witnesses have to say

The court generally works to preserve the status quo for children in as much as that is possible so that their lives will be as undisturbed by custody changes as possible.