Child custody is a sensitive but inevitable decision that divorcing couples must make if they had or adopted a child during their marriage. Where parents are unable to reach a compromise, the court will have the ultimate power to determine the appropriate person(s) to have custody.

Other instances that child custody cases could arise include legal separation, parental death, marriage annulment, or adoption.

The term "child custody" means the right of an adult to:

  • have physical access to a child; or
  • provide care; or
  • make decisions about the child.

What are the rights available to persons eligible for child custody? This article considers child custody rights that can be shared or granted to an individual.

Physical Custody

Physical custody means that a parent or an adult has the right to interact with a child and in some cases, it includes the privilege of having the child reside with that adult. This automatically implies that divorced or no longer cohabit parents can share the right to interact and spend time with their child ("joint physical custody"). In exceptional instances, a parent may have this right to exclude the other parent (this is known as "sole custody").

The sole physical custody of a child may be granted to a parent. Where primary custody is ordered, i.e., the child primarily stays with one parent, the other parent gets visitation rights ("non-custodial parent"). For the non-custodial parent, the child can visit every other weekend or spend vacations with him or her.

Joint physical custody works best when both parents live in the same or close neighborhoods as their proximity will reduce the discomfort involved in travels and a constant change of environment.

Legal Custody

There are decisions adults can make on behalf of a child. Decisions such as the choice of medical care, school, religious upbringing, and many more are usually determined by parents. The rationale is that the child is assumed not to have the mental capacity and requisite knowledge to make an informed choice. Therefore, the right of divorced parents (or designated adults) to make decisions or contribute to the process of making decisions concerning a child is called legal custody.

Family law courts in most jurisdictions will often award joint legal custody to both parents to enable them to play their roles in the child's development.

Sole Custody

Where a party raises the issue of sole custody, the court must determine whether joint child custody will harm the development and growth of the child. The reason for petitions for sole custody can be based on facts or historical patterns of a parent that will be regarded as preventing him or her from being fit to play the role of a parent.

Having examined the concepts of physical and legal custody above, there can be two types of sole custody, namely:

  • Sole physical custody
  • Sole legal custody

Courts in most states would likely make an award of joint legal custody. However, the court may grant sole legal custody (also called "sole parental responsibility") if there are barring factors such as:

  • mental incapacity of a parent
  • unavailability of a parent (on short notice)
  • abandonment
  • if it would pose a danger to the child or not in the best interests of the child

Sole physical custody is the legal term that describes the exclusive right of a parent to have the child reside with him or her and prohibits the other parent from interacting or enjoying physical access to the child, except with supervision. The non-custodial parent has no visitation rights but may still be granted joint legal custody of the child.

Sole physical custody can be ordered in circumstances where a parent:

  • has a repeated history of alcohol or substance abuse
  • has a history of child abuse or neglect
  • may cause harm to the child
  • agrees to the arrangement

In rare cases, the court will order that a parent should have full custody i.e. the parent will get both sole legal and physical custody of the child. The guidelines for child custody vary from state to state, and it is advisable to study your state's guidelines or consult a local child custody lawyer to know more about child custody in your state.

Joint Custody (Also Called Shared Custody)

As in many cases, co-parents can share the right and responsibility to make decisions about the child. They can also have joint physical custody of the child. Such instances are referred to as joint custody or shared custody.

Different types of joint custody include:

  • joint legal and physical custody
  • joint legal custody
  • joint physical custody

The extent of the rights granted under shared physical custody may vary but it is shared anyway.

Sole Custody vs. Joint Custody – What's the Difference?

The main difference is the right of one parent to exclude the other parent from either participating in the decision-making process about a child and/or the physical access to the child. It becomes sole custody when a parent has such an exclusive right and it is joint or shared custody when both parents share the rights of access or responsibilities of making the important decisions.

Based on the above difference, there are four types of child custody that can arise, namely:

  • Sole Legal Custody: when one parent can make decisions about the child without consulting the other parent.
  • Joint Legal Custody: both parents contribute to the decisions that impact the child's life such as a change of residence, schooling, religious upbringing, etc. If a parent deliberately takes a decision without consulting the other parent, he or she may be held to be in contempt of the court.
  • Sole Physical Custody: a parent is granted the sole authority of physical access to the child. If the other parent attempts to gain physical access outside of the supervision directed by the court, such parent may be held liable of contempt.
  • Joint Physical Custody: the court grants both parents the right to hold physical interactions with their child and, in some instances, have the child come over to spend time at their residence. Where one parent has primary custody, a visitation schedule to allow the noncustodial parent to spend time with the child is drawn up for balance and predictability.

Non-Parental or Third-Party Custody

The judge will consider and award the custody of a child to a non-parent or third party if there are compelling reasons to do so.

Non-parents that may apply for child custody include step-parents, grandparents, aunts or uncles, partners in same-sex relationships, or other family relatives.

Circumstances in which a non-parental application may be made include:

  • When there is no surviving parent
  • Where the surviving parent or both parents are unfit
  • If the child has spent a significant amount of time with the non-parent
  • Where both parents agree to the arrangement

However, it is very unlikely that the court will award non-parental custody as most jurisdictions follow the parent preference rule. This rule states that a parent will be preferred for the award of child custody except he or she is deemed unfit.

Visitation

Different visitation rights that can be agreed to by parents or granted by the court depending on the circumstances. They include:

  • Supervised Visitation: In this instance, a third party, usually another responsible adult or a government worker, will be designated by the court to supervise interactions during a visit. The non-custodial parent may not visit or interact with the child in the absence of the supervisor.
  • Unsupervised Visitation: Under this type of visitation, the non-custodial parent is allowed to have the child stay over in their house or go on a vacation or outing with their child. The courts are usually more inclined to grant this type of arrangement unless there are limitations such as a disability of the child or unhealthy accommodation environment of the non-custodial parent.
  • Virtual Visitation: Aided by the digital technologies available today, non-custodial parents can keep in touch with their children via video-conferencing software. This visitation right is usually supplementary to other types of visitation rights. This option is ideal for non-custodial parents who live a long distance apart from the parent with primary custody.

How is child custody determined?

There are out-of-court settlement procedures such as mediation, collaborative divorce, or divorce arbitration that can be employed to settle child custody disputes.

What most family law professionals advise is for parents to reach a Settlement Agreement on child custody. This will not only reduce the time and costs associated with child custody trials but will also bring a lot of stability to the budding co-parenting relationship. Much more, both parents will have the opportunity to prioritize the child's best interests since they are privy to the (special) needs of the child.

However, if both parents are unable to reach a suitable agreement, the court will have to determine what custody arrangement will best cater to the child's interests.

To conclude, it is important to note that child custody is determined according to the state's laws and terminology and the facts made available to the court. If you desire to get any type of custody of your child or have a feeling that you may be excluded from playing your role in your child's life, it is vital to get in touch with a family law attorney or professional for appropriate legal advice.