Nobody can deny that the divorce process comes saddled with a myriad of challenges. From deciding who keeps the assets, and the family home to understanding how parental roles will change, it is a lot of work. As you go through this highly stressful change, you also come across terms that you may not understand. One of these terms is physical custody which you and your ex must talk about, paving the way for a custodial agreement. This contract stipulates how you will relate to each other regarding your children from now on. Given that it is legally binding, you will want to ensure you have understood everything it entails from the start.
What Is Physical Custody?
Physical custody refers to a parent’s right to housing a child and providing them with medical care, food, and other basic needs. They are mainly responsible for the child’s wellbeing and must be physically present.
Every state abides by different child custody laws, and your attorney is best positioned to advise you on what applies to you. If you and your ex can agree on how you would like to share parental duties, you can skip the court processes and draft a child custody agreement out of court. If not, you will need to argue your case in court on why you should get physical custody.
Physical custody comes in two forms:
- Joint physical custody: Unless you and your ex can present extenuating circumstances, the court often leans on this form of custody. It allows both parents to share parenting time. However, equal parenting time is not standard and instead depends on the current situation. For example, if it makes more sense for the child to reside with one parent primarily, the other parent can enjoy weekends with the child. In some cases, the child can move from one house to another, e.g., week 1 with parent 1 and week 2 with parent 2. Ultimately, the judge will seek the approach that is less strenuous to the child. Joint physical custody works better where the parents can agree on a flexible schedule and put their differences aside.
- Sole physical custody: This form of custody grants one parent sole physical custody, and the other enjoys visitation rights or an equivalent. Courts often lean on such an outcome where one parent is seen as unfit to care for a child. Examples include where a parent has untreated mental issues or substance abuse problems. Considering the child’s best interests, the court would send the child to live with the fit parent until a point in time where the other parent can step in.
Factors Considered in Granting Physical Custody
Given the complexity of physical custody and its implications on the child and parents, the decision relies on many factors. These include:
- Who has been the primary caretaker of the child? The parent who has been most present and proven to have good parenting skills will often have an advantage.
- Who can adequately care for the child? As much as both parents may be willing to care for the child, one may be more able to take on the role. These abilities tie to the financial and mental wellbeing of the parent. Also, if a child requires physical and emotional support, the court will consider which parent can adequately meet these needs.
- Which option will be less strenuous to the child? For example, if one parent lives outside the school district, their chances of getting physical custody will likely be lower. The same holds for parents who live out of state.
- What does the child want? Once the child is at an age where they can independently voice their preferences, the court can consider their opinion.
In all these scenarios, the court will assess what is in the best interests of the child. Even if a parent ticks all the boxes, the outcome may be different from their expectations.
Pros and Cons of Physical Custody
Some parents often lean towards having sole physical custody. If you would like this option, here are some of the perks of such an arrangement:
- No back and forth: The child can enjoy stability by not packing and unpacking each time they reside at one parent’s house. Emotionally and psychologically, this can be beneficial to the child who can enjoy some permanency in their life.
- Less disruption: Most couples choose to keep the family home for the sake of the children. Therefore, the parent with custody can remain in the home and ensure the child barely feels the hit of the separation.
- More routine: Without checking schedules in two homes, the child can find a workable routine and stick with it.
- Ongoing relationships: The child can bond with the custodial parent and also engage with the non-custodial parent.
While having the child to yourself might seem like the best fit, considering the downsides is also essential. These include:
- Separation: Even with visitation rights in place, the non-custodial parent can miss out on important milestones in the child’s life. Additionally, the child may take a while to get used to not seeing the other parent, which can hurt their emotional wellbeing.
- Aggression: Once the court rules in the custodial parent’s favor, it may seem like they are the better parent. Therefore, the non-custodial parent may harbor resentment towards the custodial parent.
- Division: Visitation rights do not amount to living with the non-custodial parent, and the child does not get to see what it would be like to live with them. Instead, their bonding time is limited to playing and catching up with each other.
When one parent has sole physical custody, the non-custodial parent often enjoys visitation rights. These allow the parent to visit the child now and then. Additionally, the parent can spend unsupervised time with the child on holidays and vacations. This time allows the parent and child to bond without disrupting the child’s routine. Many states have now opened avenues to securing visitation rights to grandparents.
Additionally, the non-custodial parent can also get legal custody, enabling them to make decisions relating to the child’s wellbeing.
Example of Physical Custody
In the past, joint custody was more common. However, courts are now warming up to sole physical custody even where both parents are fit to care for the child. These rulings are often in favor of less disruption in the child’s life. Non-custodial parents get to enjoy visitation rights to account for less time with the child.
So, what is a typical example of physical custody? Let us assume Mary and Frank both have legal custody of their child, Brian, enabling them to make decisions on his behalf. Per the custodial agreement, Mary gets physical custody of Brian. She gets to have him on school weeks. Frank, on the other hand, gets to spend time with Brian on weekends and alternating holidays. Both get to be present in their child’s life, albeit separately, and Brian spends exclusive time with each of them.