Custody, like many other areas of law, has evolved to include options that may better fit a given family situation. These options include sole custody, joint custody, shared custody, and split custody. These options allow greater flexibility for the parties to discuss what may be best for the children and also for the court to determine what arrangement is in the best interest of the children.
Sole custody allows one party to have the sole care, custody, and control over the minor child. Basically, this entitles one parent to make the decisions affecting the health, education, religious training, and other major issues regarding the child. The sole custodial parent may consult with the other parent as to his or her opinion, but the ultimate authority to make the decision lies with the parent who has sole custody.
At the same time, simply because a parent has sole custody does not mean that the other parent has no rights as to decisions affecting the child. If the noncustodial parent is against a decision, the parent can file a petition with the court and the court may decide what is in the best interest of the child by changing custody or by entering an order directing a parent to do something.
Of course, the court does not want to become involved in nor does it have jurisdiction to hear petty issues regarding the child. However, some actions are of a serious enough nature that action of some type by a court is necessary.
Joint custody grants both parents legal custody of the child. The arrangement does specify one parent’s home as the principal and primary place of residence of the child, with the other parent having visitation with the child.
Joint custody requires both parents not only to consult with each other regarding the child, but also requires that the parents come to an agreement as to what they are going to do regarding major decisions affecting the child.
Mechanisms are often built into the agreement as to steps that can be taken if the parties do not agree. Often the joint parenting arrangement includes an obligation of the parties to mediate a conflict with a third party prior to taking court action. At the same time, as with sole custody, a dispute may ultimately be determined by a court.
Shared custody involves an arrangement where all the children live with each parent for a portion of each year. This form of custody is not preferred because it fails to provide the children with a sense of a stable, continual residence.
Generally, this type of custodial arrangement is not ordered by a court after trial. Therefore, this arrangement is usually adopted only by the agreement of the parties.
Shared custody is found in two basic arrangements. The first arrangement is found in situations where both parents live very close together, usually in the same school district. The child may rotate between homes on a daily, weekly or monthly basis. The child can then have the benefit of both homes on a regular basis.
The problems in this arrangement are in the areas of discipline, regularity and consistency. In order for this arrangement to be workable, both parents must be able to cooperate and speak on a regular basis so that similar study habits and regulations are followed.
If the parents cannot agree or if they have different philosophies of raising children, the arrangement will not work and will only add to the problems at hand.
Another instance where this arrangement is found involves parents who live a great distance from each other. This involves situations where regular alternating weekend visitation is impracticable if not impossible.
As a result, the parents divide the time with the children. One parent may have the children during the school year and the other during the summer or the children may live with each parent six months out of the year.
Obviously, similar difficulties occur in this situation. The issue of schooling is of prime importance and problems arise when the children are told that they cannot be with their friends during the summer or participate in other summer activities in the community of one parent.
These shared custody situations are not favored by the courts. However, courts will often incorporate these terms into the divorce decree if both parties agree. At the same time, you should consider the long-term effects that this arrangement will have on your children’s social and personal life. In determining if this situation is best for you, consider your children first and place your needs second.
Another form of custody involves situations where one or more of the children live with one parent while the other children live with the other parent, often referred to as split custody. It has long been held that this arrangement inhibits the children’s ability to build lasting relationships with the other siblings.
However, there are occasions when this arrangement is best. For example, the older children may be taking out the frustrations of the divorce on the younger children. There also may be a male/female distinction that develops in light of the mother/father difficulties and differences the children are observing.
If there is a fear that split custody will break down the long-term relationships between siblings, then steps must be taken to see that all children maintain frequent, although not necessarily daily, contact with each other.
Also, it may be useful to schedule visitation in a manner that allows each parent to see the children residing with the other parent without the other siblings. Overall, split custody does not have to mean no contact between siblings in that a creative visitation solution may be utilized.
Custody is a very complex and difficult issue. Settlement of this issue is highly recommended for two reasons. First, as a couple, you know the individual needs of your children better than a judge who has limited information from which to render a decision.
Second, at the same time, if you feel strongly that you are better able to provide for the daily needs of your children, then a custody fight may be necessary. However, it is clear that caution and careful consideration must be taken in approaching this issue.