The Post-Divorce-Parenting Glossary

Child Custody

• What is child custody?
• What are the two main types to child custody?
• How can legal and physical custody be given to the parents?
• How does a court determine the type of child custody arrangement after a divorce?
• What is a major decision vs. a minor day-to-day decision?
• What is the most common child custody arrangement ordered by a family court?
• What are other, less common types of child custody arrangements?
• How does mediation affect who gets child custody after divorce?
• What issues should parents consider before signing a child custody agreement?
• How does going to court affect who gets child custody after divorce?
• Is a mother more likely to get custody than the father?
• Are courts biased against fathers in child custody cases?

What is child custody?

Child custody is the legal term used to describe the living arrangements and the decision-making authority that a parent has over a child following divorce or separation.  Child custody defines the parents' or guardians' rights to make decisions on behalf of the children.  The type of child custody agreement that is ordered by a family court will determine where the child lives, what type of visitation schedule might be used, who will be responsible for making major decisions on the child's behalf, and how much child support is to be paid by the non-custodial parent.
  

What are the two main types to child custody?

Child custody can be effectively broken into two distinct components -- 1) legal custody and 2) physical custody.  It is important to understand both of these definitions because they will part of a divorced or separated parent's life for the remainder of the children's childhoods.

Legal Custody
Legal custody grants a person authority to make major decisions on a child's behalf.  The parent with legal custody is the one who will be allowed to make choices about school, medical care, religion, and other child-rearing, long-term decisions.

Physical Custody
The other component of child custody, which determines where and with whom the child will live, is called physical custody.  Physical custody refers to who has the right and responsibility for the day-to-day care of a child.  Typically the child lives with the parent who has physical custody, and that parent is called the custodial parent or primary custodial parent.  The other parent, called the non-custodial parent, will typically have a visitation schedule (parenting time schedule), and be required to pay child support to the custodial parent.
  
Legal custody and physical custody together make up child custody, but it is also important to realize that it is possible and common for parents to share or not share both legal and physical custody.  This leads to four different child custody outcomes:
 

• Sole Physical Custody
• Joint Physical Custody
• Sole Legal Custody
• Joint Legal Custody

How can legal and physical custody be given to the parents?

While there are several different types of child custody arrangements that can be ordered by a family court, two types are most common.  Typically, child custody is either granted to one of the parents (sole custody) or to both parents equally (joint custody or shared custody).  These types of child custody arrangements can apply to both physical and legal custody, or they could apply to one or the other.  For example, a family court could award sole physical custody to one parent but joint legal custody to both parents.  Likewise, it could award joint physical custody and sole legal custody.  The type of child custody arrangement that the court orders will depend on the unique circumstances of the child custody case.

How does a court determine the type of child custody arrangement after a divorce?

Typically, a dissolution of marriage involves negotiations and/or disputes over how child custody should be allotted.  Child custody is often decided by a family court according to the best interest of the child doctrine or “best interest” standard.  This means the judge will attempt to determine which type of child custody arrangement would be the most beneficial for the children involved in the child custody case.

A few of the factors that affect the court's child custody order are:
 

• the type of work schedules that the parents have
• where the parents live and where the child has lived
• substance abuse history for the parents
• child abuse history for the parents
• a history of abandonment
• the relationship that the parents have with the child
   

There are many other factors that the court is likely to look at, and as the court evaluates the child custody case, it will do so within the framework of the best interest of the child doctrine in the United States.  In countries that use an English Law System, courts will use the Welfare Checklist as a guide to determine what child custody arrangement is best for the children.

What is a major decision vs. a minor day-to-day decision?

When people refer to legal custody, they refer to the authority to make major decisions like school choice, medical care, and what religion to follow.  Major decisions differ from minor day-to-day decisions that people naturally make when watching a child.  Day-to-day decisions include issues like what time to go to bed, when to do homework, or what clothes to wear.  The easiest way to think about what constitutes a major decision versus a minor decision is to apply the babysitter test.  If a decision could reasonably be made by a babysitter, then it is not a major decision - it is day-to-day.

The importance of differentiating between major decisions and minor decisions becomes apparent when considering what types of decisions the noncustodial parent can be expected to make when he or she is in care of the child, if that parent does not have legal custody.  Assuming that the non-custodial parent does not have joint legal custody, that parent will still make decisions, but they won't be the major decisions that legal custody allows.

What is the most common child custody arrangement ordered by a family court?

Sole custody is the most common type of physical custody arrangement.  According to an older study posted on DivorcePeers.com, when parents mediate, sole custody occurs 69% of the time (63% to the mother and 6% to the father).  When a child custody case goes to trial, sole custody is ordered 55% of the time (44% to the mother and 11% to the father).  Joint custody occurs about 25% of the time if the parents mediate and 40% of the time if they go to court.

Family courts tend to award joint legal custody, even if sole physical custody is awarded.  The reasoning for courts awarding joint legal custody is that it gives both parents a parental voice into the upbringing of the child.  Whether to award joint physical custody or not depends a lot on the living arrangements of the parents and the children.

To make joint custody work, it is imperative that the parents are able to communicate effectively with each other about issues with their children.  If parents are able to co-parent, that type of divorce parenting strategy is likely the most beneficial for the children.  If parents are in high-conflict, they may consider parallel parenting as a way to communicate without violating the child bill of rights.  If parent have a very high level of conflict, a parenting coordinator might be ordered in some states.

What are other, less common types of child custody arrangements?

Some other forms of child custody include an alternating custody arrangement, in which a child or children live for an extended period of time with one parent then the other, bird's nest custody, split custody, and third-party custody. Many factors affect which type of custody arrangement a family court will favor.

How does mediation affect who gets child custody after divorce?

Mediation lets both parties in a divorce work out the details of their divorce decree together, without a family court having to decide.  The advantage of mediation is that it gives both parties control over the wording in the divorce decree; however, there are issues with mediation, that if not careful, can lead to costly litigation in the future.

According to a DivorcePeers statistic, when parents mediate, mothers get sole custody 63% of the time while fathers only get sole custody 6% of the time if they mediate.  Also, in mediation, the parents will elect to have joint custody 25% of the time.  Contrasted with going to court, mothers get sole custody 44% of the time and fathers get sole custody 11% of the time.  Joint custody is awarded 40% of the time if the case goes to trial.

This shows something profound about mediation -- fathers typically decide they don't want to fight for child custody when they mediate.  Why this is the case is unknown, but some possible reasons are:

 

• Parents who mediate may have one lawyer involved, and that lawyer is only able to represent one party.
• The person who does not initiate the divorce is not prepared to litigate for child custody, and mothers initiate divorces.  According to a study done by AARP, 66 percent of women who divorced say they were the ones who asked for the divorce.
• A father who is career oriented might decide that the best thing for the children is for the mother to get custody during the week, while the father is able to get visitation on weekends.
• A father might simply assume they are unlikely to win custody in courts, so they settle.

What issues should parents consider before signing a child custody agreement?

Before signing a settlement agreement, both parents should take time to seriously consider the ramifications of the documents they are signing -- even temporary ones.  The documents will likely affect the quality-of-life for the children and both parents, as well as child support payments until the children reach adulthood.  Many parents make a critical mistake of assuming that a temporary custody agreement is not important.  Sadly, this results in many divorced parents getting into an unhappy custody situation later -- a situation that can eventually lead to unnecessary, stressful, and costly litigation.

The reason for this is courts will likely view the "temporary" situation as a new status quo for the children's lives.  No document is truly temporary, and signing a document with the assumption that it is "only temporary" is analogous to taking the first step into quicksand.  A judge may look at the where the children have been living under the temporary situation and decide that it does not make sense to change that  situation.

Parental relocation clauses are extremely important to consider.  According to Vijai Sharma, Ph.D, approximately 17 percent to 25 percent of divorced parents will relocate within one year of being divorced.  Parental relocation is one of the top reasons that divorced parents return to court years after a divorce.  Furthermore, parental relocation can have drastic effects on the children's quality of life if it interferes with their ability to engage in the same extracurricular activities that their piers growing up in nuclear families might be able to engage in.

Joint custody is something to seriously consider.  It can lead to co-parenting and help keep both parents involved in the children's lives.  While a parent might not initially consider the idea of joint physical custody as the best option, it does offer some protection against one parent relocating out-of-state.  Note that joint physical custody does not necessarily imply that each parent has a 50/50 custody schedule.  It merely implies that neither parent is the noncustodial parent.  Even in the case of sole custody, a relocation clause should also be considered as a way to prevent one parent from moving without consent of the other.

A mediation clause is also something to consider; however, a mediation clause could also lead to issues.  A mediation clause is intended to have parents work out problems confidentially, with the help of a mediator, before going to trial.  Sometimes a mediation clause can create an delay in resolving conflict as a judge will refuse to hear a case until the parents have mediated.

There are far too many considerations and scenarios to list, so it is advised that parents seek legal counsel before signing any documents that could affect their child custody situation.

How does going to court affect who gets child custody after divorce?

Ironically, going to court will reduce the number of custody arrangements where the mother is the primary custodial parent.  In other words, fathers who mediate will typically not get sole custody or joint custody.  While it is still much more likely that a mother will get custody if a child custody case goes to court in a contested divorce, the chances of a father getting custody almost double when compared to mediation.  

Is a mother more likely to get custody than the father?

Statistics from the U.S. Census show that mothers are about 4 to 5 times more likely to have sole custody of the children than the father after a divorce.  The reasons for this difference are:
 

• In mediated uncontested divorces, parents agree the mother should have custody 63% of the time, while parents agree the father should have custody only 6% of the time.
• In both contested and uncontested divorces fathers want custody only 33% of the time while mothers want custody 88% of the time.
• Because fathers are typically the primary income source, they tend to be more career-oriented than mothers, which can lead to courts finding that mothers with more free time are the best option for child custody.
• Because women are more likely to initiate a divorce than men, they are more likely to be prepared for the divorce litigation to come than men are.  This unpreparedness can lead to men signing settlement agreements that lead to them not getting the same custody agreement they might get if the custody case were litigated.

 

Are courts biased against fathers in child custody cases?

Often, the question of bias by judges is brought up because of the discrepancies between men and women getting custody, but to understand if bias is or is not occurring, it is first necessary to understand what methodology a court uses to evaluate custody decisions.  The best interest of the child doctrine is the standard used in all 50 states and the District of Columbia.  The best interest of the child standard replaced the tender years doctrine, which presumed a child is best raised by his or her mother.  Even though courts shifted from the tender years doctrine, many people, including some father's rights groups argue that the courts remain in the mindset of the tender years doctrine.

It would be impossible to say that bias does not take place.  That would be like saying nobody in the United States remained prejudice after the Civil Rights Movement.  The real question is, "how significant is bias toward women by courts, in determining child custody?"  To possibly be biased, the court must obviously be in a position to decide on a child custody case.  Many cited statistics don't take into account the number of custody situations where the parents mediated.  Looking at statistics that simply show how many mothers versus fathers have custody doesn't provide an accurate indication, because most child custody decisions are mediated via an uncontested divorce.  But, looking at trials only, a father will be awarded custody 1/4 of the time that a mother would.  Bias is one possible explanation, but other possibilities also exist.

The best interest doctrine forces courts to evaluate how much time each parent will be able to spend with the children.  If the father has a career that takes him away from the children more than the mother, this is likely to hurt his chances of getting custody.  Also, if the father is not the initiator of the divorce, he may still be going through the grieving process, while the mother is seeking legal counsel and preparing for divorce litigation.  Both of these reasons can lead to fathers not becoming the primary custodial parent without court bias being the cause.

Even if bias does not exist, the question remains whether or not the family law system is "fair" in how child custody is determined.  Is it fair that a parent who is not ready for battling a divorce case or who has been a financial provider for his or her family for years, is more likely to lose custody of their children because of these factors?  If family law truly wishes to evolve into a system that puts the children's needs first, it will need to address this unfairness in the system and seek fairness for the entire post-divorce family unit.  It would need to give each parent a chance to gradually enter a divorced parenting life, rather than being thrusted into it in a high-conflict child custody battle.  Also, it should help parents transition to co-parenting lifestyle.  And lastly, it should do whatever it can to prevent or reduce unilateral parental relocation.

 

Child Custody Resources:
Types of Child Custody Arrangements After a Divorce
http://singleparents.about.com/od/legalissues/a/typesofcustody.htm
Describes various types of child custody arrangements that divorced or separated parents might be ordered to participate in.
Dr. Phil - Child custody battle advice
http://www.drphil.com/articles/article/642
Dr. Phil describes 10 great tips that every parent should think about when it comes to dealing with child custody.
Terms that divorced parents should know about child custody
http://family-law.lawyers.com/child-custody/Child-Custody-and-Child-Visitation-Terms-To-Know.html
Describes the various types of child custody that a court might order, and what to do when you cannot agree.
Who initiates divorce?
http://www.adn.com/2012/06/24/2518581/most-of-the-time-wife-initiates.html
This article explains how it is typically the wife who first files for divorce, and what that means for child custody.
Keywords

custody, child, children, parent, legal, court, divorce, physical, separation