An issue of contention after divorce or separation can be who will get custody of the child[ren]. There are two type of custody. Physical custody and legal custody.
What is physical custody?
Physical custody can be sole (primary) physical custody or joint legal custody. “Sole physical custody” is when the child will reside with, and under the supervision of, one parent, subject to the court’s power to order visitation. Joint physical custody is when both parents have significant custodial time with the child. There is no requirement that joint physical custody be 50/50. One parent may have the child over the summer, the other might have the child during the school year.
Who gets physical custody?
Best interest of the child is the legal standard the courts look when they want to award a parent with physical custody. If you have been the primary caretaker of the child, there is a presumption that it would be in the best interest of the child to reside with you. Courts do not like to make changes unless it is clear that the change is in the best interest of the child. Thus, if you do not have physical custody, you would have to explain why and how you obtaining physical custody will benefit the child. Each case is different. Facts become very important.
What is legal custody?
Legal custody is the decision making authority of a parent. Just like physical custody, legal custody can either be sole or joint. Sole legal custody means one parent is in charge of marking decisions or has access to important private information concerning the child. Joint legal custody is when both parents are in charge of making decisions and have access to important private information concerning the child.
Custody after divorce or separation
One parent is often the primary caretaker of the child. Courts like to keep the status quo unless keeping it will not be in the best interest of the child. This means after divorce, the judge will likely ask each parents some questions to determine who is the primary caretaker. If both parents are primary caretakers then the court may order that physical and legal custody be joint.
Does custody impact child support?
Yes ! child support calculations can be significantly impacted by the custodial time each parent has. The parent with less custodial time with the child is more likely to be required to pay child support.
Whether you can keep or take physical or legal custody depends on whether such arrangement would be in the best interest of the child. Thus, facts become important. A good attorney can help you draft a strong legal argument based on the law and applied to the specific facts of your case.