Legal and Physical Custody of Children

Authored by Wendy Witt, Esq.

Your children are your life; we totally get that. If you and your child's other parent are taking a break or calling it quits, your kids still need you and you need them. Your lives will run more smoothly if you and your spouse/partner understand the two types of custody.

What are the Two Kinds of Custody?

First, please note that while the term, "custody", is still widely used, lawyers, courts, and the legal system use the term, "timesharing". Timesharing, as opposed to custody, emphasizes sharing, it's not a win/lose word like custody is.

Second, we'll answer your question: There two types of custody are legal custody and physical custody (aka "time sharing"). Both are often shared - sharing custody is called "joint custody".

What is Legal Custody?

Either one or both parents have legal authorization to make decisions on behalf of their children: health care, education, religious, social, lifestyle, and general welfare decisions.

Legal custody can be held by one parent, but, typically, it's shared jointly - which tends to be a good thing - because this means that both parents are on the same page and have chatted and made decisions together.

What is Physical Custody?

Time sharing (physical custody) refers to the parent(s) with whom the child lives with and spends time with. Again, typically, physical custody is shared, meaning the child spends time with both parents.

However, joint custody or time sharing does not necessarily mean that time is split 50/50. Time can be split as works best for the family and is in the best interests of the children.

Not All Children in a Family Need the Same Custody Arrangement

If you haven't been through divorce or dissolution before, you may not have thought about having different plans for different children. If it works best for your family, it's perfectly acceptable to have customized parenting plans for each child.

This is often the case if one child has medical or developmental concerns, the children are of vastly different age groups, or they have different biological or adoptive parents.

Where Do I Get Help Figuring Out Custody?

Fortunately, there is a lot of help available to help you develop a parenting plan.

We suggest that you:

  • Start by consulting a family law attorneyto identify your legal rights and what kind of plan your child may benefit from.
  • Choose a family law lawyer who is willing to support you through negotiation of a spousal agreement and mediation - and who is also willing to go to court, but only if necessary.
  • Mediation is available to help you and your spouse/partner work out a parenting plan, but if you are unable to do so, the court is willing to make decisions on your behalf.

What is Family Law Mediation?

First of all, "family law" covers all issues relating to the family including divorce, dissolution, custody, time sharing, adoption, spousal support, child support, emancipation, and the like.

Secondly, mediation is the process wherein a highly trained neutral party helps conflicting parties make good decisions and reach an agreement.

When you combine the two, you get a neutral party who helps you and your spouse/partner reach a common ground and reduce your agreement to writing.

Mediation is very popular because you get to choose your own future, instead of having the court dictate what your life is going to be like - and it's way less expensive and faster than going to court.

If mediation doesn't work out - or it's not a good fit because your spouse/partner is abusive - you can always go to court. Mediation is not binding until you sign an agreement.

NOTE: We don't mean to make it sound as though mediation is required. If you and your spouse/partner can work out all terms of a spousal agreement on your own or with the support of your family law attorneys, that's great. We just want to make sure you know that having the court butt in isn't required, unless you want that kind of help.

How to Find a Family Law Attorney

Www.attorneys.org is a free - no obligation - and - private website. You can find a family law attorney on the site and get a free case evaluation. You could also ask a friend, whose had a successful experience, for a referral or call the bar association for a list of family law attorneys.

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