May 31, 2022
To begin with, what do we mean by the term ‘child custody’? A family lawyer, like our friends at O’Cathain Law Group, can explain that while the definitions and rules differ in every state in the U.S.— and clients are advised to consult with a family law attorney in their own state— there’s no such concept as ‘general custody of a child.’ Rather, there’s ‘sole’ and ‘joint’ custody, and ‘legal’ and ‘residential’ custody (at least in New Jersey).
Let’s briefly break down what this all means:
- Legal custody: This type of custody grants the parent, co-parent or guardian the power to make long-term decisions about the child’s welfare, including the manner in which the child is to be raised, as well as medical and financial decisions.
- Residential (or physical) custody: As defined by the term, this decides where the child will reside. Will the child stay with one parent at the home they know, or move with one parent to a new home? Will the child attempt to split time equally between two co-parents’ residences?
- Sole custody: Defined as when one parent has primary decision-making authority (as in custody) and the other parent has parenting time, which often is limited.
- Joint custody, which can apply to legal and/or residential custody: When both parents share decisions-making concerning their child and/or share an even fifty-fifty split of residential custody.
Residential custody has evolved over the years; initially it was almost always determined the child would live with the mother, with the father seeing the child on weekends, holidays, vacations, which gave way to the term ‘Disneyland Dad’ (a father who swoops in on the weekend to do something fun with the child, and then returns the child to the mother for a week of schoolwork, bathing and chores), or ‘the fun parent’. Recently, however, ‘nesting’ has become a popular part of residential custody, where the children stay in the house and it is the parents who rotate in, depending upon their custody schedules and agreements, thus allowing children to be in their own environs, with their own stuff, all the time.
What does the court take into consideration when making decisions about custody? Again, it varies from city to city, county to county, state to state, but the standard basis is, “the best interest of the child.” What is in the best interest of the child?
Naturally divorcing co-parents may disagree about the correct or appropriate answer to the best interest standard, but factors that will shape the answer may include:
Who is the child’s primary caregiver? Where has the child primarily resided during the life? What is the manner or style of life the child has become accustomed to?
Other facts and questions the court may consider and ask are: are the co-parents civil? Do they communicate well? What is their divorce relationship going to look like? What is their relationship with their children like?
More troubling topics may also emerge: is there any history of violence or physical abuse? Has either parent struggled with substance abuse? What is the stability of the home environment? Are the child’s basic needs being met?
And, to the extent that it can determine with minors: does the child have a preference based upon reasonable, rational thought? Has the child bonded with one parent, or both parents?
Obviously, the court’s decision is difficult, and, while guided by the laws of the state, personalized. It may also be extremely difficult for one divorcing party to accept. What we wish for you in your divorce journey— no matter where you are divorcing— is a smart, amicable divorce in which both parties can continue to be a healthy and beneficial presence in their child’s life. In other words: what is in the best interest of the child.