A fight over child custody is one of the most frightening, frustrating, and difficult parts of the divorce process.   It’s always best to come to as reasonable and as equitable a parenting plan that two parents can manage logistically, providing that both parents are fit and willing to do what is required.  Unfortunately, the cases we most often see that “must” go to court hearings are those involving at least one party who is what we will almost always refer to as: high-conflict.

Child custody is the establishment of the time that each parent will be afforded for maintaining their rights and responsibilities managing the parent-child(ren) relationship. They can establish it without court intervention, which is the best situation for all, or fight over it in which case, someone else will be charged with making serious, life-affecting decisions which will impact the entire family for years to come.   In divorce cases where there is no evidence of abuse (child or spousal), neglect, or other issues which would call into question a parent’s fitness, cooperative spouses may decide who has sole, primary, or shared (equal) responsibility over the child with or without the final approval of family court.

In the event of a high-conflict divorce or custody dispute, that decision will fall to a judge, very likely with the input of a variety of other “professionals” such as guardians ad litem, custody evaluators, psychologists, psychiatrist, and others.  Child custody laws vary from state to state and state guidelines will generally be the underlying driver in a judge’s decision about child custody .

Most commonly, child custody involves two main issues: physical custody and legal custody issues.  Legal custody refers to who will make the major decisions that will affect the life of the child. These major decisions can include choices made about religion, education, health care, dental care, emergency care, extracurricular activities, child care arrangements, etc. Physical custody refers to who the child will live with and often the schedule will be a detailed part of the order/agreement for same. Consideration for most situations will be undertaken, including time spent with either or both parents during extended school breaks, summer, holidays, and vacation periods.

A judge will grant child custody by considering the laws of your state, the parents or guardians, and the best interests of your child. Child custody may be awarded to one or both biological parents, grandparents, stepparents, or other possible legal guardians of the child.

Most state’s child custody statutes document the reality that frequent contact with both parents following a divorce is in the best interests of the child absent negative issues surrounding abuse or parental fitness. That doesn’t mean to imply that the rulings reflect such intelligence.

If the court should find a parent unfit to perform their duties as a caretaker of the child(ren), a judge may be inclined to grant sole custody to one parent. This result would give the primary custodial parent the exclusive rights and responsibilities to make all major decisions pertaining to a child without having to discuss anything with the other parent. Sole custody may apply to one or both the physical custody and legal custody matters.

With physical custody, the family law court will assign one parent the primary custodial parent and the other will be secondary custodial parent – commonly known as the “non-custodial parent.”  This would be an unbalance joint-custody situation.  In shared-parenting situations (50/50 or close to it), one parent may be designated “primary” and the other “non-custodial” for the purposes of child support determination, depending upon your state’s statutes.

With legal custody, the majority of cases default to joint legal custody.  Both parents have a say in major decisions affecting the life of the children involved in the custody situation.  Disagreements are generally referred to mediation or litigation, but generally speaking – neither parent is permitted to unilaterally make such decisions.  Other times you may see parents assigned joint-legal custody but one parent is assigned “final decision-making authority.  Reality is, that’s not joint legal custody – it’s sole legal custody anytime one parent can make the “decision” of a matter falling into this category.