Most of the time, custody isn’t a “win or lose,” “all or nothing,” proposition. Usually, when parents fight over custody, the judge winds up awarding some kind of shared custodial arrangement where both parents share a lot of time with the kids. It’s not necessarily 50/50, but both parents get to be with the kids a lot.
Of course, keep in mind that I’m talking about good parents here. I’m not talking about cases where one parent is abusive or neglectful. I’m talking about a case where there are two nurturing, caring, loving, supportive parents, who just so happen to be divorced, separated, or otherwise unmarried.
Types of Custody
Custody isn’t always a big thing; in fact, in most cases, the parties are able to reach an agreement relatively easily. In other cases, though, a fight begins to brew. Both parents want to spend as much time with the kids as possible, and it’s difficult to imagine a custodial arrangement that doesn’t allow as much access to the kids as the parents previously enjoyed.
I hear the phrase “sole custody” a lot, but the reality is that “sole” custody really isn’t a thing—at least, not normally. Not in regular cases where there are two good parents, anyway. Most people don’t really understand the basic vocabulary of custody, so it’s confusing for them to talk about. It’s as good a place as any to start.
When you’re talking about custody, you’re talking about two different things: (1) legal custody, and (2) physical custody.
Legal custody refers to the rights of the parents to make 3 kinds of decisions on behalf of their children: (1) non-emergency medical care, (2) religious upbringing, and (3) education. Legal custody can be awarded solely to one parent (which is where I suspect the whole sole custody thing started), or jointly to both parents. In most cases (in fact, in virtually every case), legal custody is awarded jointly because the courts feel like these types of decisions are fundamental to the rights of a parent. So fundamental, in fact, that judges are uncomfortable taking those rights away in almost every situation.
Before you go jumping up and down over the word “sole,” though, let me warn you: sole legal custody really isn’t as big of a deal as you think it is (even if you were to get it, which is probably very unlikely). Sole legal custody, again, only refers to the right to make three types of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. That’s it. And, probably, in most cases, there really aren’t a whole lot of fights about those things. Being awarded joint legal custody isn’t a bad thing; it just means you have to work together on those three issues. Usually, the only place we see this become an issue is when, after divorce, one of the parents wants to send the kids to public school instead of private school or private school instead of public school. If this issue comes before a judge, oftentimes the judge will just order that the parents continue to do whatever they did prior to the divorce.
Physical custody, on the other hand, is usually where the fighting begins, because physical custody has to do with where the child spends most of his or her time. (That’s what you’re really concerned about, right?)
You can have primary physical custody, shared physical custody, or split physical custody. Primary physical custody means that the noncustodial parent (the parent who has the child less) has 89 or fewer days with a child in a year. Shared physical custody, on the other hand, means that the noncustodial parent has 90 or more days with the child in a year. The main difference between primary and shared physical custody (aside from the fact that the noncustodial parent gets a great deal more time with the child in a shared physical custody arrangement) is that, in primary physical custody, child support is a flat figure, regardless of whether the parent spends 0 days with the child or the full 89. At the 90 day point, though, when custody switches over from primary physical to shared physical custody, the child support obligation changes. Under shared physical custody, child support is determined in a sliding scale, depending on how much time the non custodial parent has with the child. If the non custodial parent has 90 days with the child, his child support obligation will be higher than if he had, for example, 50/50 custody and the full 182.5 days. Shared physical custody doesn’t have to be 50/50, though; anything over that 90 day threshold counts as shared physical custody.
Split physical custody is different entirely. It’s not usually something that the judge orders; it’s something that the parents decide to do because they believe it’s in the best interests of their children. Basically, in a split physical custody scenario, one parent takes one child, and the other parent takes the other. (We usually see this in families where one child either has special needs or is a behavioral problem, and the parents want to separate the kids.)
Termination of Parental Rights
The only time where you would truly see “sole” custody is when one parent’s parental rights have been terminated. This is not something that happens very often; in fact, even in cases where I’ve seen sexual and physical abuse, termination of parental rights hasn’t been something that has been considered.
Why? Well, primarily, because, when a child has two parents, there are two people who are legally on the hook for providing support to those children. If parents can’t provide support, then the state has to (through foster care or other placement). The state doesn’t go around terminating people’s parental rights, because it wants them to continue to support their own children. Without parental rights, there is no support obligation; legally, it’s as if the child and the parent have no relationship at all.
I don’t see parental rights terminated hardly ever. The only time I HAVE seen it happen in my practice is when (1) there’s a stepparent or someone else who is interested in adopting the child (and therefore taking on the child support responsibility), AND (2) the child’s other parent agrees. It’s pretty unusual for a stepparent to adopt a child over the other parent’s disapproval; on the other hand, we see it sometimes when the child’s other parent has a huge child support arrearage, and the parent and stepparent offer to forgive the arrearage in exchange for allowing the adoption to go through.
Just because your child’s other parent hasn’t seen the child or paid child support, though, doesn’t mean his parental rights will be terminated, or that you’ll receive sole legal custody.
How is custody normally handled?
Still, in most cases, these custody cases, even though they may be contentious, don’t end up with a real winner or loser, at least as it relates to custody. When parents don’t fight over custody, an agreement is reached. Anything is possible here—we see all sorts of things. Shared, primary physical to one parent, and split custody are all possibilities.
When custody is fought over, on the other hand, we see a pattern emerging, at least recently. These days, shared custody is awarded more and more often all the time, as judges stress the importance of the child having and maintaining a relationship with both parents. In these types of cases, where both parents live relatively close to each other, custody is shared with no problem.
But what happens in other cases—where mom and dad DON’T live in the same geographical area?
Relocation cases are tricky. In fact, I think it’s safe to say that they are virtually impossible to win.
When parents break up, especially in an area like ours where there’s a very heavy concentration of military people, it’s pretty normal for one parent to want to move away. Usually, they just want to move back home, to a place where they have a better support network. Sometimes, they want to move for a new job or different opportunities. Regardless of the reason, they definitely have an uphill battle.
Technically, until there’s a custody order of some kind in place (either by agreement and incorporated, or because you went to court and the judge issued an order at the time), you’re free to go where you like with the child. Of course, that applies to your child’s other parent as well. Some women choose to move at this point (usually, right after the break up) because they figure, as the saying goes, it’s better to ask for forgiveness than permission. It’s risky, though. Keep in mind that if you do move and your child’s father files custody petitions before you have a chance to establish residency in your new area, you risk the judge ordering you to return (and, of course, prejudicing your case because you’ve annoyed the judge by moving the kids away from dad).
If you’re going to go, though, often the only opportunity is at that point, before there’s an order in place. Otherwise, if you ask the court for permission, you’re unlikely to get it. The way the court decides things, it’s looking at what’s in the best interests of the child. It is very, very difficult to prove that moving away from the child’s other parent is in the child’s best interests.
Custody when one parent has relocated
That being said, though, we do end up with plenty of cases where mom and dad don’t live in the same place. In those cases, it IS possible to walk away feeling like there was a real winner and an actual loser, because it’s not possible for custody to be shared. Think about it. If one of you lives in Virginia, and the other lives in Maine, or Florida, or Arizona—how are you going to trade the kids back and forth every other week? It doesn’t have to be week on/week off custody, but keep in mind that 90 days in a calendar year is kind of a lot. It’s difficult to do that and live in geographically separate locations.
In these cases, we do typically see one parent awarded primary physical custody. Typically, the child’s other parent DOES get favorable visitation as far as holidays and other breaks from school are concerned, but it’s still kind of a big blow a lot of times. Often, the other parent gets a big chunk of the summer (sometimes even the entire summer), but that’s difficult, too. As you can imagine, having the kids spend the summer somewhere else means that they can’t spend the summer with their friends, enroll in certain sports, or go to summer camp at home. And even still, the child’s other parent probably has to work, so it’s not like it’s all fun and games all summer long.
These cases are the most difficult. Usually, a Guardian ad Litem (an attorney who represents the child’s best interests to the court) is involved, but they have a tough time, too, because it’s hard to make a recommendation for one parent when both parents are equally good.
It’s easier to be the parent who has stayed put than the parent who has relocated, at least as far as the judge is concerned. It’s important to bring up other issues, too, like whether the child will be close to other family, siblings (even half siblings), or friends that will make him or her happier in one place rather than the other. Mention the schools the child would attend, their rankings, and whether it would be a big departure from their previous experience. (Keeping the kids in the same schools is often important to the judge.) Google whether sex offenders live nearer to your child’s father’s new house or yours (if yours, keep your mouth shut in court!). Do whatever you can to demonstrate that living with you, rather than living with dad, is going to be in the child’s best interests. Enroll the kids in camps, sports, and other activities so that they are as deeply integrated and happy as possible. Have them talk to a therapist, if necessary, and do everything you can to support the child’s relationship with the other parent. (Judges really like that.)
It’s difficult, and you’ll definitely want to work with an attorney to ensure you have the best chance possible to win custody. Good luck! If you need more information, or want to meet with an attorney to discuss your custody case, give our office a call at (757) 425-5200.