Going through a divorce is hard enough but it gets even more complicated should you have children who are minors. Determining the best future for them is often a difficult process, especially in the cases where one or both parents are too focused on the negative, aggressive side of the divorce experience.
It doesn’t help that many people don’t fully understand what is meant by terms like joint custody or sole custody. For many of us, we have this vague, nebulous idea of what these mean and this idea can even come fairly close. But when it comes to matters of the law, it is vitally important that we don’t work on our assumptions but rather make sure we understand exactly what the law says about the subjects at hand.
That’s why we’re diving into the decision between sole and joint custody today. To begin, we’ll first look at the difference between sole and joint legal custody. Then we’ll turn our attention to sole and joint physical custody, as these are actually two different things. Finally, once we understand exactly what is being discussed, we can look at how to determine what’s in the best interest of the child in regards to sole or joint custody.
What’s the Difference Between Sole and Joint Legal Custody?
It’s a common misconception that custody refers to all the factors of taking care of the child: making decisions for them, housing them, clothing them, attending the parent-teacher meetings, taking them to the doctor, then off to soccer practice. For many people, this is what the word custody means.
But custody is actually divided and it is possible to have sole custody legally or physically, yet share the other through joint custody. So this quickly complicates things. This means that the decision between sole and joint custody is actually multiple decisions. So let’s dig in.
First, it’s important to understand that the terms “legal custody,” “physical custody,” and even just “custody,” or are not used in court any more. The proper term is “allocation of parental responsibilities,” which is divided into “parenting time” and “significant-decision making authority.”
In this article, we will use physical custody interchangeably with parenting time, and legal custody interchangeably with significant-decision making authority.
Significant-decision making authority, commonly known as legal custody, refers to the responsibility and ability that a parent has to make decisions about their child’s life. Want to have a say in where the child goes to school? Need to have legal custody. Want to raise them up in your religion? Need to have legal custody. Want to make decisions about their doctors, housing, counseling, or any other decision? Without legal custody, you have no viable say.
So how does sole or joint legal custody function?
- Sole Legal Custody: Only the parent with sole legal custody is responsible for making decisions about the child’s life. This means that they have the most influence over the important decisions in the child’s life, but also that they have sole responsibility for any negative consequences of those decisions.
- Joint Legal Custody: Each parent has a legal responsibility to make decisions about the child. This means that they will have to discuss and come to an agreement on decisions. If one acts without an agreement then they could be held in contempt of the law.
What’s the Difference Between Sole and Joint Physical Custody?
Physical custody refers to where the child will live. However, to a large degree, it also includes some control over the decision-making. Primarily, the decision of where to live. Those who have sole physical custody will have much more options in that particular regard.
Both sole and joint physical custody have their ups and their downs. Deciding on which is correct is going to require the weighing of all the different factors. However, certain factors will make the decision much easier such as when the other parent is abusive. Clearly, you would not want to share physical custody with them when you’re worried they’re going to injure your children.
Let’s take a closer look at sole versus joint physical custody:
- Joint Custody: Joint custody can be a good choice because it allows both parents to get the maximum amount of time possible with the children. Having a healthy relationship with both of our parents is important for growing into healthy adults, but not every relationship is beneficial; some are toxic. Joint custody can be a way of showing your children that a relationship with them is more important than any issues mom and dad have, but it could also backfire and result in more disagreements and the need for additional litigation down the road.
Joint custody or split parenting-time will also affect child support. The number of overnights each parent has is used in calculating the proper amount of child support.
- Sole Custody: Sole custody recognizes one of the parents as the primary guardian of the children – or “primary residential parent,” as it is now called . This doesn’t mean that the other parent is banned from seeing the children, but it does mean that that contact is limited to less than 40% of overnights per year. . For example, it is common for the other parent to get visitation rights every other weekend and on certain holidays.
Additionally, the parent who has less time in the sole custody arrangement will be on the hook for the maximum amount of child support.
How Do You Decide What’s In the Child’s Best Interests?
Custody will ultimately be determined by the court. In many cases, the court will look at an agreement that the parents have come to and approve it if it appears to be in the best interest of the child. But that approval is still required.
The courts are not going to approve anything that appears to hurt the child or use the child as a bargaining chip against the other parent. Their primary concern is that the children of the marriage will be okay, so every decision you make regarding sole or joint custody should be considered from this perspective.
Before making any decision, ask yourself if it is what’s best for the child. If not, is it the best possible decision until circumstances change? If the answer isn’t yes, the decision probably should be considered in more depth.
Do I Need an Attorney?
You should work with an attorney when dealing with matters of custody. They will be able to help you come to the best possible decision while weighing factors such as pros and cons, how the courts will look at the requests, and all the little things that can easily slip through the cracks when you try to tackle legal issues on your own.