The Post-Divorce-Parenting Glossary

• What is sole custody?
• How do legal custody and physical custody differ from sole custody?
• How does sole custody differ from joint custody?
• Does sole custody only deal with physical custody?
• Can the non-custodial parent appeal sole custody to get joint custody?
• What are the pros and cons of seeking sole custody?
• Is there a trend to ending sole custody?

What is sole custody?

Sole custody is a parenting situation, usually following divorce or separation, where only one parent is responsible for the physical care of the child.  Because child custody can be broken into two components, physical custody and legal custody, defining sole custody means gaining an understanding about each of these two important components of child custody.

How do legal custody and physical custody differ from sole custody?

Think of custody as being made up of part legal custody and part physical custody.  Each of these components will regulate a very different part of raising children.  Parents in nuclear families rarely give think of these differences — they get automatically handled in normal, day-to-day life.  But divorced families, separated families, and blended families must know the difference in order to prevent high-conflict parenting and promote high-quality parenting.

Physical custody
Physical custody addresses the "where" aspect of child custody.  Where will a child live?  Where will the child attend school?  Where will a child go to day-care or after-school care?  When a parent has physical custody of a child, they are responsible for making sure that the child has adequate shelter, food, clothing, health care, social activity, and other facets of care that accompany a safe, healthy, and happy childhood.

Legal custody
Legal custody address mostly "how" questions.  How will the child be raised with regard to religion, education, and in some cases, health treatments?  Legal custody address long-terms, major decisions — decisions that would be inappropriate for a babysitter to make (see babysitter test).

How does sole custody differ from joint custody?

Understanding the difference between sole custody and joint custody, again, depends on understanding the difference between legal custody and physical custody.  The following types of child custody are possible:

Sole Physical Custody
One parent is the custodial parent (or primary custodial parent).  The other parent is the non-custodial parent.  The non-custodial parent typically gets parenting time (visitation) and usually pays child support to the custodial parent.  In sole physical custody, the amount of parenting time is negotiated or court-ordered via visitation schedule, that should be included in a parenting plan.

Joint Physical Custody
Neither parent is considered the non-custodial parent.  Both parents are custodial parents.  With joint physical custody, both parents are equally responsible for the decisions pertaining to the physical care of the children.  The amount of custodial time each parent has can be split 50/50, but it doesn’t have to be equal.  Some states may require that near-even split in custodial time, which should be incorporated in a parenting plan.  Nuclear families have automatically have joint physical custody.

Sole Legal Custody
Only one parent is responsible for making long-term, major decisions for the child.  The other parent may still give advice or promote their opinions about matters, but they have no legal authority to actually make a decision for the child.  For example, if a parent has sole legal custody, they can decide that a child should follow a specific religion and enroll the children in a church without consulting or getting approval from the other parent.

Joint Legal Custody
Both parents are equally responsible for making long-term, major decisions on the child's behalf.  For example, if one parent wishes to begin indoctrinating a child into a specific religion, the other parent must be consulted.  If they cannot agree, they must find a way to compromise.  Joint legal custody is the way that non-divorced, nuclear families make long-term decisions on important matters.

Does sole custody only deal with physical custody?

This is where it gets confusing and why it is important to understand the context of the legal documents that apply to you, personally.  Some documents may presume that sole custody only applies to the physical custody component of child custody.  Others may presume that sole custody applies to both legal custody and physical custody.

Typically, when discussing sole custody we are referring to only the physical custody component.  In that context, it means a person with sole custody may have joint legal custody — they equally share in the long-term, decision-making responsibilities for a child.

To make matters even more confusing, other terms that like full custody and shared custody also show up in the vernacular relating to family law and child custody matters.  But these terms typically don't always a legitimate legal meaning.  Usually full custody is implying sole custody and shared custody is implying joint custody, but again, the understanding must be derived by reading the context.

Can the non-custodial parent appeal sole custody to get joint custody?

If a parent wishes to modify a custody order, there are two ways this can happen:

1. The parents can mutually decide to modify the custody arrangement, or
2. One parent can force the other parent into litigation or arbitration

If the parents are amicable and a situation arises where each of them sees the need to modify a custody arrangement, doing so can be done with little trouble, although the court documents should still be filed to properly reflect the changes.  In the case of an amicable agreement, the parents should fill out a form that may be referred to as A Petition to Modify Custody (or some variation).  In addition, another form called a Proposed Order of Custody (or some variation) may also be required.  The Clerk of Courts would be able to refer you to the correct form(s).

Assuming the other parent would not be willing to modify custody via a discussion or mediation, it will likely be necessary to litigate the issue.  In this situation, A Motion to Set Hearing (or some variation) may be required.  This form will convey the request to the court that you wish to have a judge hear the issue and decide on whether or not a change in the custody order is warranted.

Because all states and jurisdiction have their own requirements, it is important to seek the assistance of the appropriate legal professionals in the jurisdiction where you are attempting to change custody.  A family law attorney or the Clerk of Courts should be able to help with more specific questions.

What are the pros and cons of seeking sole custody?

When it comes to divorce parenting issues, there are seldom any issues that are perfect scenarios — virtually everything is a compromise or has unintended effects.  Seeking sole custody is not something to take lightly, but hopefully this list of pros and cons will help make the decision on what to do a little clearer.

Pros of seeking sole custody
The following is from the perspective of the person seeking sole custody.  A "pro" from the perspective of one parent may very well be a "co" from the other parent's perspective.

• In the case of an abusive parent, children are much more likely to be protected
• If the other parent is a bad influence, the children might be shielded from them somewhat
• The custodial parent has more power to decide what is acceptable for the children
• The custodial parent has more flexibility to decide where the children will live
   

Note that even when a parent has sole custody, it does not mean they never see the other parent.  The non-custodial parent will almost always have visitation rights.  Even in the case of an abusive parent, a family court is not likely to completely end the parent/child relationship, although supervised visitation may be ordered.

Cons of seeking sole custody

• It is much more expensive if the other parent opposes it
• It is more likely to result in conflict
• There are higher instances of unpaid child support
• It is more likely to result in long-distance parenting
• The children are more likely to witness conflict

While there are definitely times where a parent should seek sole custody, seeking sole custody tends to be an impetus to high-conflict parenting.  As many divorced parents will attest to, conflict breeds more conflict, and this results in the unintended consequences like litigation, parental relocation, and many of the negative effects on children that studies show happen to children of divorce.

Is there a trend to ending sole custody?

Some states are beginning to realize that the conflict that often erupts following a divorce or separation between parents, stems from the attempt of one parent to get sole custody.  But as it stands, almost all states still use the best interest of the child standard as the foundation for deciding child custody cases.

The best interest standard is an improvement over the Tender Years Doctrine, where it was assumed that younger children adjust better when raised by their mother.  But even the best interest standard leaves a great deal of room for improvement if it truly is meant to do what is best for the children.

Often, family law attorneys strategize ways that one parent can "win" sole custody of the children, by using the best interest of the child standard against the other parent.  A common scenario goes something like this:

Two parents have marital problems.  One is a stay-at-home parent and the other works.  The stay-at-home parent consults a family law attorney about how to exit the marriage and get the best situation after the divorce.  Together, the lawyer and the initiating parent collaborate and work out details on how to win sole custody and get child support.  Once the details are worked out, the parent wishing to exit the marriage takes the children and leaves.  The other parent, desperate, attempts to save the marriage by suggesting marital counseling.

Unfortunately, that parent is in the midst of a custody battle even though they are unaware that the war has already started.  They have been ambushed.  They are in the beginning stages of the grieving process, and the initiating parent is well underway to getting custody of the children by establishing a new status quo for the children, beginning with a temporary custody order.

This is the sad reality.  We live in a time where no-fault divorce laws exist in all states.  While at-fault divorce was plagued with its own share of problems, no-fault divorce has led to this issue.  Family law needs to further adapt to these problems and really take a stance on doing what is best for the children.

The changes that should happen to family law, should prevent this very thing, while still allow people in an unhappy marriage to divorce if that is necessary.  To do this, taking away the whole idea that one parent can "win" the custody battle would go a long way.  If parents who divorced were automatically given joint custody with as close to a 50/50 split as they can work into their schedules, and if they were not allowed to relocate without permission of the other parent, a great deal of post-divorce conflict and litigation could be reduced.

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