When a couple with children decides to call it quits, custody of the children generally becomes a top priority in the divorce. Courts will have to award both physical and legal custody to one or both parents depending on the best interests of the child.

Physical v. legal Custody

Physical custody typically refers to the child’s primary residence and the day-to-day responsibilities of caring for the child. In other words, if one parent has been awarded sole physical custody, the child will primarily live in that parent’s house and that parent will be responsible for putting the child to bed at night, helping with homework, making dinner, and other routine activities. The non-custodial parent will be granted visitation rights. However, in many cases, both parents are granted joint physical custody of the child, in which case both parents are considered custodial parents and the child will reside with and spend significant time with both parents.

Legal custody refers to the power to make important decisions relating to the child’s life. A parent with sole legal custody will have all the power to make decisions regarding the child’s schooling, religion, after-school activities, and medical care. If joint legal custody is awarded, both parents will be equally involved in the decision-making.

Factors used to determine custody

Generally, courts prefer to grant joint physical and legal custody, as it is often in the best interest of the child to have both parents involved in their upbringing as much as possible. However, joint custody arrangements do not work for all families. Courts will consider various factors before making a final decision regarding custody, including:

  • The child’s needs (e.g. physical, emotional, financial),
  • Relationships with other family members
  • Relationship with each parents prior to the divorce
  • Preference of the child (if the child is old enough)
  • Parents’ abilities to care for the child and provide a stable living environment

If one parent is unable or unwilling to properly care for the child, or is unfit in any way, the court may award sole custody to the other parent.

Dealing with child custody issues can be difficult, particularly if your ex is not on the same page as you. A family law attorney in your area can represent you throughout the divorce process and help you and your ex come up with a custody arrangement that serves the best interests of your child.