Ways the Court Can Dictate How Custody is Divided Between Parents
There are different types of child custody that can be granted by the court:
Physical Custody
Physical custody means that the child lives with you, at least part of the time. A parent with physical custody will be responsible for (and have the right to) see to the daily needs of the child, such as keeping him home from school when he’s sick and allowing him to go play with friends as well as the more major needs such as food, clothing and a safe place to sleep.
Legal Custody
Legal custody gives you the right to make the major decisions that will affect your child’s life. A few examples of these types of decisions re where they’ll go to school, what religion they’ll practice and authorization for medical care.
Joint vs. Sole Custody
Each of the custody types mentioned above (Physical and Legal) may be awarded jointly to both parents or solely, meaning only to one parent and each type of custody is addressed separately.
Joint physical custody allows the child to spend equal amounts of time with both parents, say a week here and then a week there, although you can have a completely different arrangement and still have joint legal custody (both parents having the ability to make important decisions for the child).
Even in cases of sole physical custody, many courts maintain the practice of awarding joint legal custody, allowing both parents to participate in decision-making processes. This requires the parents to communicate any concerns or desires about their child’s upbringing by maintaining a civil, cooperative relationship and work together as a team.
The main factor the courts consider is what will provide the most stability for the child. If the parents live close together and can both provide equally well, then a “back and forth” schedule may be a realistic possibility.
On the other hand, if the parents live farther away from one another, the court may rule that the child stay in one home during the school year and live with the other parent when school is not in session. Holidays, birthdays and other special occasions are also addressed during the negotiation process so that both parents have the opportunity to share in the child’s memorable milestones.
If sole physical custody is awarded to one parent, the other parent will likely receive visitation.
37 Comments
left the state with four year old in seperation from male partner and father to child – their is no legal paper work for custody. The father is verbally abusive and starting in low stages of physical violence to me. Now he states that he will find us and take my son. if he files in the original state will I and the child need to travel back if the situation is not safe. he also has passed history of all this from and exwife and child ( he has no custody of that child) I have also filed police reports on him to show his domestic issues.
A custody determination will be made by a court in the child’s home state. A child’s home state is where the child has lived for at least 6 months.
We have shared legal custody, but my ex and his parents purposefully exclude me from school information to make me look bad in court. I chase the information myself, but if you don’t know to look for something it can be very hard. Any legal way to correct this?
If you have joint legal custody you should inform the school of that in writing (attach a copy of the court order or agreement which provides that you share joint legal custody to your letter), and request that a copy of all correspondence, notices, flyers, letters, etc. be sent to you as well as your child’s father. Be sure to include all your contact information (address, phone number and e-mail.) The school is obligated to comply with your request. Keep a copy of the letter to the school in the event you will ever need to present it in court. You should also be participating in parent-teacher conferences.
I am in the process of initiating a divorce from my wife. We have 2 wonderful children ages9 and almost 11 years. We have been in this state for about 6 years. My wife hates it here and has intentions of leaving here as soon as she can. My greatest worry is that if she somehow gets full custody that she would be able to legally move across country with my babies. I have really tried to be a good husband and am an adoring father with no history of domestic violence or sexual abuse. Actually no criminal record what so ever. We have a home and land to divide and that doesn’t worry me. I can buy more land and build a home if need be. However, these boys are more important to me than anything on this earth. I desperately need to know whether or not she can take them from me.
Thank you very much,
Chester Martin
Custody laws vary from state to state, so you should look at the divorce laws in your state. However, in general the more custody/visitation you have the more difficult it will be for mother to obtain a court order that provides that she can move out of state with the children. If you are both good parents there is no reason why custody would not be 50/50. You should file a motion seeking joint physical and legal custody and be sure you have at least 50% custodial time.
we have a custody order that reads i have full physical custody, and joint legal custody with my sons father, we live in iowa. we have had issues with dhs, they are currently closing our case due to safety concerns no longer remaining. however my son is 4 yrs old and in preschool 4 days a week, our current order states he gets him wednesday from 5pm-Thurs @ 11:30 am, and every other weekend from friday @ 5-monday @ 11:30. My son gets picked up for school @ 11:30 and we currently do our visitation exchanges 10 miles away. my son always comes back dirty, irritable, hungry, and exhausted. I am in the process of getting the order modified, do you think i stand a chance for solely every other weekend.
I share joint custody of my 2 sons with my ex husband. We do this where the children live with me one week and with the father another week. Here’s the kicker I live in wv he lives in ky. I travel one and a half hours one way to get my children to school. I want to change it to where i am primary custodian again, but am not sure how to go about it. We have went to court since I moved but the judge says he see’s no wrong with the children having to travel at such a far distance. I want to overturn this but I don’t know how to go about it? any suggestions?
It is unlikely that you will be able to get an order which grants you primary custody if you and your ex spouse have been sharing custody. However, you can bring an action on family court requesting that the visitation schedule be modified based on the hardship on the children from the travel back and forth each week. For example, you can propose a visitation schedule where you have more of the time during the school year, but your ex spouse has more time during summer vacations and holidays.
I am about to be married. My daughter’s biological father has been in and out of her life for the last 8 years. Maybe he has seen her 15 times in 8 years of life. It is very hard to get in touch with him when I need him for certain things (like obtaining a passport). He has made it very clear that his priorities lie elsewhere. I would like to be the Sole Legal and Physical custody and then after getting married my fiance would like to adopte her…
She has known him as her father for the last 5 years. Please advise.
In order for your husband to adopt your daughter, biological father’s rights will have to be terminated. You should consult with the laws or a lawyer in your state to ascertain whether the facts in your case will qualify for a termination of rights.
Hi I have recently moved from maryland back to ny with my family due to a nasty break up. I have two kids with my ex one three months old,one six yrs old, we have been here for seven months and there dad has only come to see them twice he now wants to file for joint custody how do I now if this is joint legal custody or joint physical custody? Will a judge actually make us split kids up through the year that are so young? I breast feed our daughter what will that mean for her?
Once father files for joint custody you will be able to determine from the paperwork whether he is seeking joint legal custody, joint physical custody or both. When ordering a visitation schedule, the court will take into consideration the age of the children and the fact that you are still breast feeding will also be taken into consideration.
My husband has joint legal custody, but his daughter’s mother is not allowing him to be apart of the decision on where their daughter goes to school and her medical care. He has set up to get notified of all doctor appointment so he could attend, as she won’t tell him of the appointments, and now she is changing the appointments last minute, again so he cannot attend. Medical decisions are being made without him and without his consent. Is there something he can do? Is this contempt on her part because he has joint legal custody?
Your husband should file an action in the family law court informing the judge that mother has not been complying with the court order. If the court finds that mother is intentionally not following the order, the court may award legal custody to your husband.
I was awarded sole custody of both children in 2003. My ex lives in Florida and I reside here in NJ with both the children. Neither kids are to happy with their mom ( on their own accord) of course. Mom signed a declaration to the state of florida transfering the divorce to the state of NJ so she can collect her pro rata share of the escrow from the sale of the home. She has now claimed taxes for both kids screwing up my return, I have court ordered tax benefits for both the kids.Now shes threatining me with court. Am I correct to acknowledge that she has to visit NJ to file any claim that she has with me regarding the children?
Since the children primarily reside in New Jersey, New Jersey has jurisdiction over the custody matter.
I have a question on what exactly i have to do . My husband and I are worried that if something were to happen to us while our son was young and both of us were deseased what would happen to our son .. We thought about who we wanted to have take care of our son (my husbands sister) and she has exepted this role .. How do we legalize this on paper so there will be no questions asked if this time ever came. I do not want my sister in law to have a hard time with fighting laws or people for my son . I just want to know my son is in a great home even after we are gone. We think this is the best for our son and NEED to make sure that this is what would happen if we were in this kind of situation.
You may want to consult with an estate planning attorney who can help ensure that your intentions are reflected in a will or other estate planning document. There are also online services that provide these forms.
I am in a situation where my ex-husband and I have joint custody of my 7 year old son in GA. During the divorce, I had no money or job so I agree my son live with him. Out of 5 years my son has only lived with him for 1 year. I have lived at my ex-husbands house 2 different times with my son so that we could financially help each other. My son has sickle cell anemia and my ex has been collecting SSI for my son even when I wasn’t living there this last time and I didn’t know it. He gave none of it to my son. My son has gone to the same school for most of the time. Now that my ex has been giving me a hard time living at his house, I am going to move and take my son. He threatening that I can’t take him. It’s because he needs my son’s SSI money because he’s not working. I can’t prove that either. He doesn’t even spend any time with my son at home or never takes him to doctor’s appointments. I do everything for my son. How can I go about changing the custody situation that says my son is suppose to live with him because all this time, because my son only lives in his house if I’m there. My son doesn’t want to live with him or be around him. My ex also has been diagnosis with Bi-Polor and Manic Depression but does not take meds. What do I need to do.
You should file a motion to modify custody in the family law court in your county.
I have sole physical and sole legal custody of my child. Could I get my childs passport without having my childs father involved?
Yes, if you have sole legal custody you will be able to obtain a passport without the presence or consent of father. You must appear in person to apply for the passport and must bring a copy of the court order granting you sole legal custody.
Source: http://travel.state.gov/passport/get/minors/minors_834.html
My daughters’ father and I have joint custody, which I was told by the judge means that he has decision making rights…but I have physical custody of her. He has visitations Wednesday 6:30pm to Thursday 6:30pm and the last weekend of the month. We live in New York but my fiancé recently moved to Florida in to work with his father who has a family owed business. I would like to move as well bc i feel that the quality of living would be better for my daughter. How should I go about this in court? We just went through child support and he is upset bc he feels that the amount that he has to pay is too much ($200 a week). I have tried to be civil with him but he refuses to cooperate with me and all we do is fight. i had to take him to court bc he tried to violate the custody agreement by taking our daughter out of state without my knowledge. He is very disorganized and usually shows up to court very unprepared. Also would it work on my behalf that I have an order of protection against him for harassment? Thank you for your advice!
If you have joint physical custody of your child you would have to file a motion with the court requesting primary physical custody of your child before you could move to Florida with her.
I have joint custody with my son’s mother, her residence is the primary residence. In November she moved 2,000 miles away without our son, she gave me 30 days notice but refused to modify our parenting plan. I am now thinking about seeking sole custody and changing my residence to the primary residence and then devising a long distance parenting plan so our son can still see her. Do I have the right to seek sole custody for decision making? I would still want to consult her in major decisions (medical) but since it is difficult to get her signature, etc I would like to have sole custody so I can make decisions based on his current needs. What are my rights?
You should file a motion immediately requesting primary physical custody of your son. The longer you wait to file such a motion the less likely it may be granted.
Joint legal custody means that both parents must make decisions about the child’s health, safety and welfare, which includes medical decisions and decisions about education. If you want to make these type of decisions without input or consent of mother you will also have to request sole legal custody.
I have 50/50 legal custody of my children (in the state of Alaska) and they have a doctor that has been treating them since they were born.
I would like to continue to use that doctor, but their father does not. (He lives in a different state and the divorce was in Alaska)
He has written a letter revoking his consent for this doctor to continue caring for my children.
What are my legal rights?
Since there is an order which provides that you share legal custody with the father, father must participate in decisions about your child’s medical care. If you want the ability to make these types of decisions without father’s input, you should file a motion requesting sole legal custody.
I have sole custody of my daughters. My ex has been going through criminal proceedings for the sexual abuse of my daughter from a previous marriage (his step daughter). What do I legally have to communicate with him about? He threatens to take me to court if I don’t update him on “how are they doing”. I really don’t care to deal with him at all. He has not seen them for two years due to his probation status, but is getting ready to start supervised visits. Should I be worried if I don’t cooperate with his inquiries that he could get shared legal custody? What is he entitled to know from me? I’m really not concerned about the shared physical custody because I dont think any court would grant that after what he did to my older daughter.
I was just awarded full legal custody (becaues my x and I are incapable of making decisions together). My x was awarded physical custody on half the afternoons during the week including Wednesday afternoons which are 1/2 day every week and when most sports and after school activities happen.
Since I have full legal custody, can I enroll my son in activities on Wednesdays even though he is with his father?
Thanks.
I live in the state of nj. The mother of my children who are twin boys 13 of age .. At my house and said she can’t handle them any more. I’m not sure of the custody rights… Years ago when they were 2 we had court orders joint custody. Since then she had had several dyfus cases opened on her and dyfus has taken them from her for drug use. They are living with me now for 3 months and ate very happy Jere with me. Thier mother rarely visits them. Gives me no money. What ate my rights I would lime to move to arazonia to a more quiet serene place for them cause they are emotionaly disturbed from her. And ate hyper active. I think the nice weather n surroundings would be good for them n the school systems are better. Also rent woild be alot cheaper I could provide them with a bigger place to live with thier own rooms. Right now they share one.. How woild I go about doing this… She currently has a dyfus case open on here . And they children have stated to dyfus abuse and neglect…. What can I do?
According to the information you have provided, it seems that there is a court order which provides that you have joint physical custody. In order to move to Arizona you will need to file a motion in the family law court requesting primary physical custody. Documented evidence of drug abuse and neglect by mother will be helpful in getting your request granted. You should try to obtain documentation from DYFUS that you can provide to the family law court.
I have Sole physical Custody and Shared Legal Custody. My child has been diagnosed with ADHD and needs treatment. Can I get the treatment without his consent?
My ex-husband and I share joint physical custody, where our young son lives with me for 1 week and him for 1 week. When we went to court he had a lawyer and I did not, however now my ex-husband is engaged to a woman who herself has had her own children taken from her for overdosing on pain medication trying to kill herself. My ex-husband works from 6 in the morning til 5:30 pm Monday thru Friday and she is the one in charge of caring for my young son. I am scared but can not afford a lawyer, please help with your advice.
My soon to be ex husband and I share joint legal custody of our two children. The children live with me and I have final decision making authority if we cannot agree.
Do I need to consult with my soon to be ex about things like talking with my childs teacher and asking the teacher questions regarding her education?
Do I need to consult with him on matters like after school preparation for a specific test? Even if the after school prep does not affect his visitation time?
My question is what is the definition of a “major decision”? My soon to be ex is basically contending that ANY decision whatsoever regarding the children must be discussed prior. “Hey EX – I cannot decide what color shoes to put our daughter in today..red or black…what do you think?” “Hey EX – our son would like to go outside and play…what do you think?”
This is what I am dealing with….please point me in the right direction.
I have sole custody in Texas. My divorce was granted in Texas. He has since moved to Oregon and has not paid child support in over a year. My questions are 1) I have to move to Louisiana for my new husbands work, can I do it without my ex’s permission 2) Since he is so out of the picture and is a convicted felon, can I have his rights taken away?