There are two parts of child custody, legal custody and physical custody. Legal custody means having the power to make the major decisions about the child’s health, education and welfare. Physical custody means having the majority of time with the child. In a divorce both of these issues must be resolved, either by agreement of the parents or by holding a trial and having the judge decide.
In many cases, the parties agree to joint custody, meaning that the parents will share information about the child and they agree to jointly make all major decisions. Day to day decisions, such as what the child will eat or how the child will spend his or her time during the day, are always made by the parent who is with the child that day. Also, emergency decisions, such as a health care emergency, are made by the parent confronted by the emergency. Major decisions, such as where the child will go to college or whether the child may obtain a driver’s license or begin dating, must be made in joint consultation after sharing all of the appropriate information.
While joint custody is the most common and while most judges show a preference for it, joint custody is not appropriate in every case. Where there are issues of spousal abuse or substance abuse, joint custody is not appropriate. Also, where the relationship between the parents has degenerated to such a degree that they are unable to have meaningful discussions, joint custody is simply not appropriate. In fact, agreeing to joint custody, knowing that one parent refuses to cooperate will likely lead to greater problems in the future.
Where the parties cannot agree on physical or legal custody, the judge will have to decide based on the “best interest of the child or children.” Cases that proceed along this route can be complex and emotionally draining. The judge may appoint an attorney to represent the child’s interests and a forensic psychologist to interview all of the relevant parties and prepare a comprehensive report about the family dynamics. Such reports can be very influential on the judge.
The best results in custody cases are achieved by carefully evaluating every aspect of the custody case from the outset. The client must be fully briefed for meetings with the Attorney for the Child and the forensic psychologist, so that he or she can make a favorable impression. The client can then speak knowledgably and confidently about why he or she is the more appropriate parent to residential custody of the children. This is often the turning point in a custodial case, although prior results do not guarantee a similar outcome.