February 11, 2019|
One of the biggest challenges of getting divorced is figuring out who will get custody of the kids, and when. One of the first things that ha to be determined is whether one parent will have sole custody of the children, or if custody will be shared between parents.
What’s the difference between sole and shared custody? What factors might influence a child custody arrangement and the type of custody that’s awarded? These are important questions to consider as you navigate your divorce.
Two Types of Custody: Legal and Physical
It’s important to remember that there are two distinct types of custody: legal and physical.
Legal custody refers to a parent’s right to make decisions on behalf of their child and have access to their child’s private information. For example, a parent with legal custody of a child would have the right to make decisions about healthcare and education.
Physical custody refers to a parent’s right to be present in their child’s life and have their child live with them. For example, a parent with physical custody of a child would have the right to have their child live in their home.
Custody decisions must reflect a parent’s legal and physical custodial rights. Both of these rights can be sole or shared.
Shared Custody Is Prefered in Los Angeles
In California, courts prefer for children to remain in regular contact with both parents after a divorce. It’s believed that maintaining relationships with both parents will be in the child’s best interest and provide them with the stability and normalcy they need after a divorce. The best way to achieve this is by awarding parents shared legal and physical custody of a child.
Shared custody means precisely what it says. Both parents are awarded the right (a) to make decisions for their child and (b) be present in their child’s life. In shared custody arrangments, parents have to be willing to compromise and work together to do what’s best for a child.
Do Parents Have Equal Rights in Shared Custody Arrangments?
Not necessarily. Joint custody arrangments do not have to award parents equal rights. Joint, or shared, custody simply means that both parents are awarded some degree of rights and responsibility in regard to their kids. However, it is often preferable to grant rights that are as equitable as possible in joint custody situations.
Legal Custody: In shared custodial arrangments, it’s fairly simple to award parents equal legal custodial rights of a child. Neither parent has the “final” say when there are disputes over decisions that affect a child’s health, education, or well being. Instead, both parents get an equal say. If disputes can’t be resolved, courts can step in and make a unilateral decision.
Physical Custody: In shared custodial arrangments, it can be difficult to divide physical custody equally between two parents. It’s simply a logistical nightmare. As a result, one parent often gets to spend a little bit more time with the child than the other. In other situations, one parent spends significantly more time with the child than the other. However, both parents continue to share the right to have their child live with them in their home for at least some period of time during the year. The parent who spends more time with the child is often referred to as the primary custodial parent.
Sole Custody Sometimes Necessary to Protect a Child’s Best Interests
Courts will always encourage parents to find a way to make a shared custody plan work. However, there are times when allowing both parents to share legal and physical custody is not in the child’s best interest. This happens when there is evidence to suggest that a parent would not be physically, emotionally, or psychologically fit to take care of their child.
Sole custody may be preferable when one parent:
- Is addicted to drugs or alcohol
- Suffers from a mental or physical disability
- Has a history of domestic abuse
- Travels frequently and can’t provide a steady home for the child
- Is visibly absent from the child’s life.
Sole custody can also be useful when two parents do not live near one another after a divorce. For example, a shared physical custody arrangement wouldn’t work too well if one parent remained in Los Angeles, but the other moved to New York. It wouldn’t be fair to the child to require them to live half of their life in one state and half of their life in another.
Does Sole Custody Mean that the Non-Custodial Parent Never Sees Their Child?
No. Sometimes sole custody is simply awarded because both parents agree it’s in the child’s best interest. Other times, it’s necessary to protect the child from potential dangers a parent may inflict. However, sole custody doesn’t mean that the non-custodial parent has to sever all ties with their child. The non-custodial parent is typically awarded visitation rights.
Visitation can be supervised or unsupervised. Supervised visitation means that a parent cannot spend time with their child alone. Another person must be present to make sure that the child is safe and that the visitation time is beneficial. Supervised visitation may be necessary when sole custody is awarded due to concerns about a parent’s ability to care for their child safely.
Unsupervised visitation means that a parent can spend time with their child alone. This is the type of the visitation that’s typically awarded when parents agree that sole custody is best. For example, it’s common for a child to live with the custodial parent, but spend every other weekend with the non-custodial parent.
Negotiating child custody arrangments can be challenging. It’s always best to work with an experienced family law attorney. Contact Fernandez & Karney for help with your divorce today.