There are two forms of child custody:

 

• Legal custody – The ability to participate in important decisions in your child’s life, regarding things such as medical care, education and religious decisions. 

• Physical custody – Establishing which parent the child is physically with, and when. Physical custody can take several forms.

 

• Sole physical custody — the minor child spends every overnight with one parent. 

 

• Primary physical custody – the minor child spends more than 50% of the overnights with one parent. 

 

• Partial physical custody – the minor child spends less than 50% of the overnights with one parent. 

 

• Supervised physical custody – the custodial time with one parent is monitored by an adult or agency designated by the court or agreed upon by the parties to ensure the safety and well-being of the child during the custodial time.

 

Ideally, both parents will be able to work together to reach a mutual agreement regarding both legal and physical custody. Any agreements reached can either be followed informally or can be drafted and signed as a custody stipulation, which can be submitted to the Court and signed by a Judge to be made just as enforceable as any other Court Order.. In the event of an unresolvable dispute, however, you will have the opportunity to present your desired outcome regarding custody with the Court and to provide your rationale for your preferences. It’s important to keep in mind that the Court is obligated to make decisions in the best interests of the child. A parent's preference should not take priority over what is actually best for the child. Custody orders are always modifiable because the best interest of the child can change.  Once each parent has presented their case, the Court will then be charged with answering these vital questions:

 

Who will have legal custody?

Most parents share joint legal custody of their child, meaning each parent has an affirmative obligation to discuss important decisions with the other parent. The exception is when one parent is viewed as incapable of consistently making decisions in the child’s best interests. Reasons for this determination can include a parent’s abuse of drugs or alcohol, mental health issues or a proven history of failing to protect the welfare of the child. In such instances, the Court may choose to award sole legal custody to the other parent.

 

Who will get physical custody and visitation rights?

Again, it is preferable that the parents are able to reach a physical custody agreement without the intervention of the Court because they are the ones who are best able to know and understand their child’s best interest. Often this involves negotiations facilitated by the parents’ attorneys and/or a third-party mediator. In the event an out-of-court agreement cannot be reached, it will be up to the Court to establish rules governing physical custody and visitation. In such cases, the Court considers a wide range of factors, including those outlined below.

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Determining the Child's Primary Caretaker

The primary caretaker is the parent responsible for meeting the day-to-day needs of the child: for instance, providing meals and clean clothes, ensuring the child attends school, providing necessary medical care and planning and participating in recreational activities. The Court will interview the parents, the child (when feasible) and sometimes third-parties to determine which parent appears to be more capable of meeting the day-to-day needs of the child.

 

Whatever solution the Court arrives at is required to serve the child’s best interests. Specifically, the ultimate custody decision must promote the child's happiness, mental health, emotional development, and security. Among the factors the Court can consider are:

• Each parent’s physical and financial ability to meet the child’s needs

• Physical and mental health of parents

• Any special needs the child may have

• Need for a stable home environment

• Child's own wishes (if old enough to express this)

• Interactions and relationships with other members of the household

• Evidence of drug or alcohol abuse

• Adjustment to the community

 

Custody in Non-Divorce Cases

Child custody cases are not always linked to divorce. Custody disputes also can arise between unmarried parents, or among close relatives. There also may be non-divorce cases involving the visitation rights of grandparents. Custody decisions between two unmarried parents are made in the same way those between married or divorcing parents are made.

 

If you are not the biological parent of a child of whom you seek to establish custody rights, you may be able to do so if you have “standing.” “Standing” means that you have a relationship with the child as defined by the law that permits you to be awarded custody rights of that child.  If this describes your situation, you should contact your lawyer to determine whether you can successfully seek custody rights.  If you are a grandparent seeking custody of your grandchildren, see our page on Grandparents’ Rights.