What is child custody?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 8, 2020

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Child custody refers to guardianship of a child. This may refer to physical custody, wherein you have the right to have the child physically under your care. It may also refer to legal custody, where you have the right to make decisions for a child but do not actually have the child living with you. 

How Is Child Custody Determined?

When two parents are married or living in a coupled relationship, then the custody of the child belongs to both parents. Unless there is a strong reason to remove the child from the home, such as neglect or abuse, the two parents share physical and legal custody. They are both responsible for providing care for the child and they both make decisions for the child together. 

When parents are no longer living together, however, things become more difficult since the child will have to live with one or the other, and since the parents may not be working together to make all decisions related to the child.

In the event that two parents decide they can no longer live together, there are two main ways child custody is determined:

  • The two parents can decide upon a child custody agreement together. This method is generally preferred, as it allows the people who know the child best to establish what should be done. Often referred to as a parenting plan, such a custody arrangement can be approved by the court as part of a divorce settlement or in a separate proceeding in family court. When a judge approves a custody agreement, it becomes legally binding.
  • If the two parents cannot agree, custody may be litigated. Each parent will present evidence to a family court judge, who will assess a number of factors to determine the custody agreement that will be in the best interests of the child. 

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Types of Child Custody

Regardless of how custody is awarded, there are a few different types of child custody arrangements that may be put into place:

  • Sole physical custody is appropriate when only one parent is fit to provide care for the child. The other parent may not have any physical access to the child, or the parent may have limited access such as supervised visits 
  • Primary physical custody is appropriate when it is in a child’s best interests to spend most of his or her time with one parent, but when the court believes that it is best for the child to also visit with the other parent regularly so as to maintain a relationship. The non-custodial parent may have a regular visitation schedule, such as the opportunity to take the child for visits every weekend. 
  • Joint custody is appropriate when each parent is equally capable of and interested in providing a solid, stable home life. In a joint physical custody situation, the parents may get equal time- or close to equal time- with the kids. 

Legal custody is also a form of child custody, which may be determined separately from physical custody. Legal custody refers to the right to make decisions about education, health and other important issues regarding the child, and a parent may have shared legal custody even if he does not have shared physical custody. 

Getting Help

The process of dividing custody of a child can be emotional and legally complex. Having a lawyer on your side during this process is important to ensure that you get the best results possible. 

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