Parents who are divorcing, and who have children, must address two separate and important issues up front: who will have legal custody of the children and who will have physical custody of the children. Depending upon the circumstances, legal custody and physical custody may be awarded to one parent solely, or to both parents jointly.
Legal custody gives a parent the right to make legal decisions affecting the children. The parent with legal custody is granted the authority to make all important decisions regarding the children, including what school the children will attend, what medical treatment they will receive, what religion they will follow, and what activities they will participate in.
Because these decisions are critical to a child’s upbringing, most courts strongly favor awarding legal custody jointly to both parents. However, if joint decision-making is not in the children’s best interest, a court will award legal custody to only one of the parents. This might be appropriate in situations where one parent refuses to communicate with the other parent, is not fit to make decisions, or where one parent is abusive.
When a parent has physical custody of the children, the children live with that parent. The non-custodial parent then typically has visitation rights, the specifics of which need to be spelled out clearly. Depending upon the number and age of the children, along with other important factors, the custodial parent is awarded child support to pay for the basic needs of the children. These needs include food, clothing and shelter for the children.
Sometimes the parents decide to share equal residential custody of the children. This means the children live equal amounts of time with each parent. A typical arrangement is one in which the parents live very close to each other, and the children spend part of the week at one parent’s home and the other part of the week at the other parent’s home. With this arrangement, especially, there needs to be a willingness of the parents to work together and cooperate.