The Post-Divorce-Parenting Glossary

• What is the babysitter test with regard to child custody?
• Understanding legal custody: What types of decisions can a parent with legal custody make on a child's behalf?
• Understanding physical custody: What types of decisions does physical custody allow?
• What type of child custody does the babysitter test apply to?
• Why is it so important to understand the differences between legal custody and physical custody?
• What is meant by joint legal custody?
• Does the noncustodial parent have physical custody when he or she has the children?
• What is the best strategy to coordinate how legal custody decisions will be made?
• If conflict might be an issue, how can parents deal with that in the parenting plan?

What is the babysitter test with regard to child custody?

The babysitter test is not an actual legal term that exists in family law; however, we invented this term because it very clearly describes how cooperating parents should think about decision-making with regard to physical custody and legal custody.  Stated another way, the babysitter test is a thought process that helps divorced or separated parents easily know the the difference between decisions allowed by legal custody versus physical custody.

Understanding legal custody:  What types of decisions can a parent with legal custody make on a child's behalf?

When a parent has legal custody of a child, they have the right to decide on the long-term, life-changing decisions about a child.  Decisions such as the religion a child should be involved in, what type of school they should go to, what types of medical care they should or should not receive, and other major long-term decisions are all encompassed by legal custody.  The key attributes of a decision under the domain of legal custody are that the are: 1) long-term, and 2) major.

Understanding physical custody:  What types of decisions does physical custody allow?

When a parent has physical custody of a child, it means that parent is responsible for the day-to-day care of the child.  In legal documents such as a divorce decree or separation agreement, this parent is called the custodial parent (sometimes the primary custodial parent).

Having physical custody does not give a parent the right to decide on the long-term decisions; however, if that parent has both physical and legal custody, then the legal custody component of their child custody arrangement allows for the parent to make the long-term decisions.  The physical custody component only allows for short-term, day-to-day decisions.

What type of child custody does the babysitter test apply to?

The babysitter test is a way of looking at the types of decisions a person with physical (but not legal) custody can make about the child.  When a parent or person has physical custody, they are responsible for keeping the child safe and controlling their behavior while in their care.  They are responsible for things like making sure the child does their homework, does their chores, learns good manners, goes to bed on time, brushes their teeth, etc.

In other words, these are decisions that a parent might expect of a babysitter to handle, if one were watching the children for the night.  A parent might expect a babysitter to put a child in timeout for kicking a ball in the house, but they would not expect a babysitter to indoctrinate a child to a specific religion.  That would fall under the domain of legal custody.

Why is it so important to understand the differences between legal custody and physical custody?

A stated above, physical custody is the authority for a parent to provide a stable environment for a child to live in, while legal custody is the authority of a parent to make significant long-term decisions about the upbringing of a child.  It is important to know the difference between physical custody and legal custody because misunderstanding them can lead to high-conflict parenting between both parents.

If parents have joint physical custody of a child, this means each parent is equally responsible for the long-term decisions made on the child's behalf, even if one parent is the noncustodial parent.  Being the custodial parent or noncustodial parent has absolutely nothing to do with making long-term decisions for the children.

What is meant by joint legal custody?

The babysitter test is useful to consider for joint legal custody arrangements.  Joint legal custody means both parents have an equal say in the long-term decisions about the children.  This means that both parents have a say in all of those issues that would be inappropriate for a babysitter to make.

These decisions do not require a parent to be physically present to make.  A parent can live far away, but still have an equal say in the religion that the children will follow.  If the parents disagree, they must figure out ways to compromise, just the way a married couple in a nuclear family would.

Does the noncustodial parent have physical custody when he or she has the children?

It is more or less a play on words, but legally speaking, the noncustodial does not have physical custody; the noncustodial parent has parenting time (e.g. visitation).  Parenting time can be thought of as physical custody while the children are present, and the babysitter test helps to understand what types of decisions the noncustodial parent is or is not allowed to make during visitation.

As an example, assume the child custody arrangement gives sole legal custody and sole physical custody to the mother.  This means the mother is the custodial parent (she has physical custody), and it also means the mother is the only parent allowed and responsible for long-term parenting decisions (she has legal custody).

When the father in this example has parenting time with the children, the father is not allowed to attempt to alter the long-term decisions that the mother has made for the child.  The father in this example is relegated to the same level of responsibility as a babysitter would be.

The above example also helps to show why family courts commonly award joint legal custody.  If the custodial parent and noncustodial parent had joint legal custody, then the father would have every right to guide the children through those long-term decisions.  The genders could be reversed, but the idea is simply that legal custody and physical custody are completely different; joint legal custody is legal custody that is shared equally by both parents.

What is the best strategy to coordinate how legal custody decisions will be made?

When parents divorce or separate, some states or jurisdictions require that they create a parenting plan.  Not every state requires a parenting plan, although it is a great idea whether required or not.  A parenting plan essentially forces the parents early on to think through the big changes that are about to come their way following the divorce or separation.  

Parents who divorce do not truly split.  They must still communicate on behalf of the children.  The parenting plan will help parents think through the actual logistics of collaborating on big decisions, before they become an issue.  While creating a parenting plan, remember the babysitter test so your parenting plan makes sense; don't confuse legal custody decisions and physical custody decisions.  If parents have different ideas on certain types of upbringing decisions like religion, type of schooling, medical care, and the like, they can work out solutions in the parenting plan to avoid confusion later.

If possible, it is best if parents are able to co-parent their children together.  Co-parenting means that divorced or separated parents are amicable, and are able to communicate without conflict on the issues their children are dealing with.  If co-parenting is not possible due to conflict, parallel parenting is the best option to still be able to collaborate at some level, but avoid the topics that might trigger conflict.

High-conflict parenting should be avoided at all costs.  Many studies have shown that serious negative effects on children after a divorce or separation are, in fact, caused by high-level, ongoing conflict - not the divorce itself.

If conflict might be an issue, how can parents deal with that in the parenting plan?

Fast forward to the end of a child custody case.  A the family court will has created a document for the divorced parents to follow them on their journey through post-divorce parenting life.  The document is called a divorce decree, and in it is a lot of information used settle disagreements later.  It is essentially the divorced parents' set of rules that they must follow as they raise their children together, from different households.

Thinking about the babysitter test will help parents understand how legal and physical custody gets inputted into the parenting plan.  Because the divorce decree is derived from the parenting plan and the subsequent litigation that followed the divorce, it is very important to understand the differences between physical custody and legal custody.

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