A parent has legal custody of a child when she is responsible for making major life decisions for the child. A parent has physical custody when she is the primary caretaker for the child and the child lives with her on a regular basis. Either custody type may be sole or joint. The primary factor behind any custody determination is the best interest of the child.
In this module we continue our study of custody. Specifically, we’ll break custody down further and explore the differences between sole and joint custody and will present and analyze the factors a court uses to make a sole or joint custody determination.
Let’s begin by examining sole legal custody and sole physical custody, which occurs when one parent is granted custody to the exclusion of the other. The custodial parent has the right to make decisions regarding the child and the custodial parent is responsible for the child’s affairs, behavior and well-being. One example of a decision made by a parent who exercises sole legal custody is whether the child will follow a specific religion. She can make such a decision without consulting the other parent or acquiring his approval or consent to these decisions. The other parent has no legal authority to make a binding decision for the child.
A court may award one parent sole legal custody when the parents are unable to communicate without conflict. Another common scenario in which a court may award one parent sole legal custody is when the other parent is unfit to make major decisions regarding the child. A parent can be considered “unfit” when there’s a history of neglect or abuse that adversely impacts the child’s well-being or when the parent has a history of alcohol or drug abuse.
Other factors that can affect a judge’s decision to grant one parent sole legal custody include:
- the physical distance between the parents; and
- whether the other parent has an active role in the child’s day-to-day life.
When a court awards one parent sole physical custody, that parent has the right to be the child’s primary caretaker, decide where the child will live and make arrangements to ensure the child has adequate shelter and a stable environment. A simple way to differentiate legal custody from physical custody is that physical custody affects where the child lives while legal custody affects how the child lives.
It’s common for one parent to have sole physical custody but for both parents to exercise joint legal custody. When a court grants sole physical custody to a parent, it will almost always award the non-custodial parent visitation rights to see the child and will typically require the non-custodial parent to pay child support to the custodial parent.
Awarding sole custody has several potential disadvantages. One negative aspect of sole custody is that the non-custodial parent is likely to feel left out and his relationship with his child may suffer. Second, the child may feel cheated out of a full relationship with his non-custodial parent. Finally, all responsibility for taking care of the child falls on the single parent, which can be emotionally and financially draining.
Joint Legal Custody
Now, let’s move to joint custody, where each parent will have an important role in the child’s upbringing. Since the early 1980s, most states have enacted laws supporting joint custody arrangements between divorcing spouses, basing this legislation on studies and research demonstrating greater benefits for a child if she has both parents involved in her life. For example, one 2015 study found that children in a joint physical custody arrangement suffered from less psychosomatic problems than those living mostly, or only, with one parent.
If the parents agree to joint custody, the court will order joint custody unless it determines that the arrangement is not in the best interest of the child. Joint custody, for example may be inappropriate and not in the child’s best interest if the parents have been unable to communicate or cooperate with respect to decisions regarding their children, or if the parents are so hostile to one another that cooperation is unlikely. In one case, Heard v. Heard, a divorcing couple sought joint custody over their two sons. The trial court granted it, but the appeals court overturned the decision. The appellate court found evidence in prior hearings that the parents engaged in “name calling” towards one another and abusive telephone conversations. As such, the court ruled that joint custody wasn’t proper because there was ample evidence in three prior court hearings that the parents simply could not cooperate and communicate in an appropriate manner to advance their children’s best interests.
States differ in how they define joint custody. For example, Connecticut defines it as “an order awarding legal custody of the minor child to both parents, providing for joint decision-making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.” New Jersey goes into more specifics and provides that joint custody is an arrangement “where the legal authority and responsibility for making ‘major’ decisions regarding a child’s welfare—is shared at all times by both parents.”
Regardless of how it’s defined, joint custody rests on two pillars: sharing and cooperation. A joint custody arrangement will give both parents and the child a close relationship and permit frequent access between all. Joint custody is based on the rationale that children benefit from continued and frequent contact with both parents and that both parents play an important role in childrearing.
When a court awards joint legal custody, both parents share the decision-making power over major issues related to a child, including decisions relating to the child’s health, education and welfare. Additionally, both parents remain legally responsible for a child and the child’s actions.
It is possible for parents to have joint legal custody without having joint physical custody over the child. In most states, joint legal custody is the default preference because it is most like how decisions regarding the child would have been made had the parents remained married.
Even though a parent has a legal right to participate in the decision-making for the child, it’s up to the child’s parents to decide the most efficient way to make these decisions. Sometimes parents agree that it’s easier for one parent to have a greater day-to-day responsibility for the child. If parents are granted joint legal custody, they will need to find ways to work together to compromise on major decisions for the child. This is more doable if the divorced parents have similar beliefs and ideas on child rearing.
If, however, parents have different opinions on how a child should be raised, conflict can result if the parents are not able to communicate effectively and compromise when an argument arises. Simple decisions for the child can become fights between parents and suddenly life becomes very difficult for both the parents and the child. If a judge finds that parents are unable to resolve conflicts and disagreements, he can appoint a private attorney or mental health professional to try to resolve the problems. A judge may even decide to reverse joint legal custody and grant sole legal custody to one parent if all else fails.
Joint Physical Custody
A joint legal custody award does not signify that parents automatically will get joint physical custody as well. The two awards are distinct from one another. Moreover, joint physical custody is not necessarily a “50/50” split of parenting time. Parents have joint physical custody in such a manner to ensure that the child frequently and continuously speaks with both. Idaho, for example, specifies that “joint physical custody shall be shared by the parents in such a way to assure the child a frequent and continuing contact with both parents but does not necessarily mean child’s time with each parent should be exactly the same in length nor does it necessarily mean the child should be alternating back and forth over certain periods of time between each parent.”
In a typical joint physical custody arrangement, the child will live with one parent during the week and then reside with the other parent on weekends. Furthermore, if the parents live near each other so that the children can move easily back and forth between houses and can maintain their regular activities no matter which house they’re in, there could be overnight weeknight visits. No matter how a custody arrangement is settled, joint physical custody will require greater parental communication and greater cooperation.
Other types of joint physical custody arrangements include “a school year split,” where a child lives with one parent during the nine months of the school year and moves in with the other parent for the three summer months. Another potential arrangement is a “bird’s nest co-parenting arrangement” where parents rotate in and out of the family home. Rather than the children having to adapt to the parents’ needs and living in two separate dwellings, they remain in the family home and the parents take turns moving in and out. A novel, sensible, yet expensive arrangement, children experience much less disruption in their lives and routines than having to shuttle and adapt to completely new living arrangements.
To facilitate communication and cooperation, over 30 states have developed parenting coordination programs to help parents arrange and monitor joint physical custody arrangements. The parenting coordinator is a neutral, court-appointed third party who assists high-conflict parents after their divorce in resolving disputes that arise in implementing the parenting aspect of their divorce judgments. A parenting coordinator may also educate the parents to minimize the degree and frequency of conflict.
There are tangible psychological benefits to a joint physical custody arrangement. First, the child has the experience of living with both parents on a regular basis, allowing him to interact and learn from both. Both parents can show continued love for the child, helping him gain greater self-esteem. The parents are established as equals, which helps the child have the same level of respect for both parents. Finally, by living and spending time with both of his parents who may live in different locations, it’s likely that a child will have an opportunity to engage with more people and make more friends.
There are, of course, drawbacks to joint physical custody. The first two disadvantages relate to the child’s best interest. First, a judge may be reluctant to agree to such an arrangement if the child’s parents may be unable to communicate effectively and collaborate with one another to share physical custody of the child. Continued bickering, arguments, and an inability to work together can mitigate or nullify whatever benefits shared custody can provide. Another potential shortcoming of a joint physical custody arrangement is that the shuttling back-and-forth may adversely impact the child. If there’s a weekday/weekend split, the child will have to adjust to living in a new location every few days. Packing up and switching homes can be very stressful, especially for a young child. Finally, joint physical custody arrangements can be expensive to maintain. If his parents don’t live close to one another, it can be expensive for parents to pay for travel, move the child from one location to another and maintain two homes for the child.
Joint Custody Checklist
When going before a judge to seek joint custody of a child, parents are often asked to create a checklist with the information specifying exactly how custody will be divided and the way the arrangement will be executed. This can reduce the likelihood of future conflict over child custody.
Some of the items in a typical checklist are:
- the reason why the parties are seeking a joint custody arrangement;
- the types of decision which require consultation with the non-custodial parent if joint legal custody is sought;
- specific times when the child will live with each parent if joint physical custody is sought;
- details regarding the specific visitation arrangements, and how they will be impacted by vacations, birthdays, and holidays;
- a designation of who will take the dependency tax exemption; and
- a designation of who will pay dental and medical expenses for the child.
 The Different Kinds of Child Custody, NOLO, https://www.nolo.com/legal-encyclopedia/types-of-child-custody-29667.html
 Jennifer Wolf, Types of Custody and Visitation, VeryWell Family, (April 5, 2018) https://www.verywellfamily.com/types-of-child-custody-and-visitation-2997637.
 Jo-Ellen Paradise, The Disparity Between Men andWomen In Custody Disputes: Is Joint Custody The Answer To Everyone’s Problems?, 72 St. John’s L. Rev. 517, 537 (1998).
 Baalla v. Baalla, 158 A.D.3d 676, 677-78 (N.Y. App. Div. 2018).
 Susan Neiburg Terkel, Understanding Child Custody (1991).
 Kathy Minella, 10 Factors Used to Determine if a Parent is Unfit for Custody, Minella Law Group (Dec. 9, 2013), http://minellalawgroup.com/10-factors-used-to-determine-if-a-parent-is-unfit-for-custody/.
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 Taylor v. Taylor, 508 A.2d 964, 971 (Md. Ct. App. 1986).
 Heard v. Heard, 353 N.W.2d 157, 161-62 (1984).
 Conn. Gen. Stat. § 46b-56a(a).
 Beck v. Beck, 86 N.J. 480, 486-87 (1981).
 Mcauley v. Schenkel, 977 S.W.2d 45, 50 (Mo. Ct. App. 1998).
 Richard A. Warshak, The Custody Revolution: The Father Factor and the Motherhood Mystique 17 (1992).
 Jennifer Wolf, Types of Custody and Visitation, VeryWell Family, (April 5, 2018) https://www.verywellfamily.com/types-of-child-custody-and-visitation-2997637
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 Robert E. Emery, Joint Physical Custody, Psychology Today, (May 18, 2009) https://www.psychologytoday.com/us/blog/divorced-children/200905/joint-physical-custody
 Idaho Code § 32-717B.
 Edward Kruk, “Bird’s Nest” Co-Parenting Arrangement, Psychology Today (July 16, 2013), https://www.psychologytoday.com/us/blog/co-parenting-after-divorce/201307/birds-nest-co-parenting-arrangements
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 Joi Montiel, Is Parenting Authority a Usurpation of Judicial Authority? Harmonizing Authority for, Benefits of, and Limitations on This Legal-Psychological Hybrid, 7Tenn. J. L. & Pol’y 362, 364 (2011).
 1 Florida Family Law Practice Manual § 8.04A (2018).
 CR Ahrons, The Continuing Co-Parental Relationships Between Divorced Spouses, 51 Am. J. Orthopsychiatry 415 (1981).
 Kristina Otterstrom, Types of Custody: Joint Custody Checklist, Lawyers.com, https://www.lawyers.com/legal-info/family-law/child-custody/types-of-custody-joint-custody-checklist.html