What are the different types of child custody and how are they determined?

By Brain

In most cases, child custody refers to the ability of a parent to have legal right to spend the most amount of time with their child. The parent has the most responsibilities associated with the child’s welfare. In cases where a person who is not the child’s parent has these rights and responsibilities, the relationship is referred to as guardianship.

Forms of Child Custody

There is a common misconception that child custody simply refers to physical possession of the child. However, there are actually two different types of custody: physical and legal.

Physical Custody

Physical custody refers to the right of a parent to cohabit with the child. In cases where the child predominantly resides with one parent, then it can be said that the parent has sole physical custody. In cases of sole physical custody, it is not uncommon for the parent without custody rights to be awarded visitation rights. If a child spends significant amount of time with two parents, then it can be said that the parents have joint physical custody. Joint physical custody does not necessarily mean that the two parents have to share time with the child equally. One parent could get to spend 70 percent of the child’s time with them while the other parent could only get 30 percent. This could be some other unequal figure with a larger or smaller difference. Joint physical custody is hard to establish in cases where the parents don’t live in close proximity with each other as joint custody with the parents living very far from each other would create massive disturbances in the child’s life.

Legal Custody

Legal custody refers to the parent’s right to have decision making powers in the child’s life. This includes the level of authority the parent can have over the child and the right to make decisions about the child’s education, health and extracurricular activities. It is common in many if not most courts to rule in favor of joint legal custody as they believe it’s usually in the child’s best interests in most cases. Parents who are in doubt about the other parent’s ability to make responsible decisions about the child welfare can make petitions in court about sole legal custody.

There is a degree of responsibility and cooperation that is expected from parents who are awarded joint legal custody. Parents have a responsibility not to let any negative feelings, that came about in the wake of the separation, interfere with their duty and rationality in making decisions in the child’s best interests.

Awarding joint legal custody does not necessitate the court awarding the same for other forms of custody. For example, a judge does not have to award joint physical custody if he has awarded joint legal custody and vice versa.

What determines the “Childs best interest”?

When custody issues are being settled in court, the “best interests of the child” standard is what is usually used to determine how the custody case will be settled. As the name suggests, the court will do its best to make the decision which will most likely be conducive to the child’s welfare and provide him or her with a decent degree of stability.

Factors that come into play when deciding what decision is in the child’s best interest are:

  • The child’s age
  • The child’s gender
  • The child’s health
  • Each parents health and age
  • A history of domestic violence, specifically any violence targeting the child
  • If the child is above a certain age, then his or her preference counts as a factor. This is particularly true if the child has the maturity to express his or her preference. This is also dependent on state law.
  • Any siblings the child might have in either home
  • Each parents relationship with the child
  • Each parents ability to provide for the child’s basic needs
  • The quality of education that the child would receive with each parent
  • The potential impact that the changing status quo might have on the child
  • Any history of substance abuse or drug addiction in the home
  • The parents’ willingness to foster a relationship with the other parent and the child

Many other factors are also taken into consideration by court when determining child custody.

Parenting Agreements

In cases where there is a degree of cooperation between the two parents, a “parenting agreement” can be used to specify the parents plans on how parenting time and decision making powers will be shared between the two parents. Parenting agreements can be integrated into a court order so that they can be enforced if one of the parents decides not to comply with it.

Parenting agreements can contain provisions about:

  • The general custody and living arrangements
  • Times and dates when each parent can have the child
  • How holiday time will be distributed
  • Financial considerations like child support, additional child related expenses and travel expenses
  • Provisions about a parents physical relocation and travelling with the child or children
  • Provisions regarding the degree of authority a parent can have when making decisions about the child’s education, health and medical needs, extracurricular activities and religion

Parenting agreements can also come about as a document produced during mediation.

Guardian Ad Litem

Whereas guardians are adults who are legally responsible for looking after the welfare and best interests of a child they have been entrusted, a guardian ad litem is a more unique type of guardian in a relationship that has been created by a court order for the duration of a legal action. They are usually appointed for infants, minors, the mentally handicapped and other persons who need their rights protected in court. Apart from divorce cases, contested inheritance cases and child neglect and abuse cases, such court appointed guardians are also seen in child custody hearings as the child’s representative.

Responsibilities of a guardian ad litem in child custody cases involves acting as the child’s voice in strongly contested child custody cases as well as reporting to the court on various issues related to the child.

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