Child Custody Law

Going through the process of a divorce or separation from your partner can be difficult. When you have children involved, there are even more steps and considerations you each need to take. Perhaps the most significant is the issue of custody. How will parents who are no longer living together split the responsibility of caring for their child?

It’s important to remember that each state has different rules, and your state’s specific rules will affect your case, so we recommend asking a custody expert in your state about your particular case. This page provides a few general principles that will apply almost anywhere.

What is Child Custody?

Most people have heard of child custody, but not everyone is aware of the different types of arrangements that can be involved. You and your ex-partner (and typically, the court) will need to decide which options work best for your family, and more importantly, work best for your child.

Physical Custody

Physical custody relates to where the child primarily resides. Physical custody may be sole or joint. In some states, the law may not require a physical custody label and instead focus on the schedule for parenting time or visitation. Generally speaking, the court may award sole physical custody to one parent, with visitation to the other parent, or joint physical custody to both parents.

Generally, there are two types of physical custody:

• Sole physical custody. This generally awarded to the parent who will have the child the majority of the time. The other parent may have visitation rights, but the child is primarily under the physical care of one parent. Sole physical custody is common in cases where one parent lives in another state, or if the courts determine a joint physical custody award is not workable under the circumstances.
• Joint physical custody. This type of custody is generally awarded when both parents share the time with the child roughly equally. Joint physical custody can involve different levels of shared physical custody arrangements. For example, one parent may have the child 70 percent of the time and the other parent the remaining 30 percent, or both parents may have a near even split of 50 percent time with the child in their physical custody.

Some states may also have specific classifications for “split” or “shared” physical custody that may differ slightly than joint physical custody.

Legal Custody

While physical custody refers to the physical location of children on a daily basis, legal custody involves the rights to make choices and legal decisions that affect the child. Generally, absent certain circumstances such as domestic abuse or other important factors, joint legal custody is commonly awarded to parents after a divorce or break-up. It is possible that parents may have joint physical custody, but one parent has sole legal custody, or one parent may have sole physical custody with shared legal custody.

Like physical custody, legal custody can be further broken down to:

• Sole legal custody. With this type of arrangement, one parent generally makes all the major decisions that affect the child, such as what kind of medical care they’ll get and where they’ll go to school. The other parent will have little to no say in most major decisions for the child.
• Joint legal custody. In these arrangements, parents share in the decision-making process for their child. This often requires parents to compromise and make choices together that will benefit their child the most.

Like physical custody, some cases and some states my have some differences between “joint” legal custody and “shared” or “split” legal custody.

If there are significant disagreements about how to raise the child in joint legal custody arrangements, such as certain medical procedures or religious decisions, you may need to go to court and have a judge decide the issue.

How is Custody Decided?

In some cases, you my be able to work out the terms of your custody arrangements through alternative dispute resolution, that is, without going through the courts. This can be done on your own or with the help of a mediator. Even with alternative dispute resolution, you’ll need to get your agreement approved by the court to make it valid. If you are unable to reach an agreement, you will need the court to help decide the terms.

Child Custody Hearings

Child custody decisions may be made as part of a divorce proceeding or separately as a custody action in the case of an unmarried couple.

At the hearing on custody issues, each parent will present information to support and argue for the custody arrangement they prefer. You’ll present evidence that supports your claims, such as financial and medical records, police reports, or emails that reinforce why you should have the rights over your child’s care. Each parent, and witnesses such as babysitters, teachers, and neighbors, may need to give testimony and answer questions from the other attorney or judge. The information gathered in these testimonies will help the judge decide which parent the child is better off with, or if their should be a joint custody arrangement.

Many factors influence the judge’s decision. The legal standard in all states is usually some form of the “best interests” standard. Each state outlines these factors in a different way, but many similarities between states exist. 

Some of these factors may include considerations such as how stable your home life will be, your work schedule, your ability to facilitate the relationship of the child to the other parent, additional family members in the home, your financial stability, and if your child will be safe in your care.

Child Custody Evaluations

In some cases, if the judge has concerns about a parent’s ability to provide a safe home for their child, they may order a custody evaluation. During this evaluation, a social worker will inspect homes and interview the parents, the child, and people they know.

Evaluations are most common when there are allegations or suspicions of substance abuse, physical abuse, or the inability of the parents to agree on anything relating to custody and visitation.

How is Child Support Calculated?

With a few exceptions, generally child support payments are made by the noncustodial parent, the one without physical custody or less physical custody, to the custodial parent, the one with primary physical custody.

While each state calculates the exact amount differently, in most cases the court will look at the income of each parent, which usually includes things like salary, wages, unemployment benefits, and interest payments, the number of kids being supported, the needs of the child, and what the paying parent can reasonably afford. Once the court has determined what the child support amount will be, the noncustodial parent will need to make the payments to the custodial parent on a set schedule, usually monthly. Failure to make payments can result in penalties ranging from paying additional fines to, in extreme cases, jail time. If your circumstances change, like if you or your ex lose a job or get a raise that affects your incomes, you can file a petition with the court to change your child support order.

Speak to an Experienced Child Custody Attorney Today

This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified child custody lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local child custody attorney to discuss your specific legal situation.