What are the Different Types of Custody in a Divorce?

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Custody is usually divided into legal and physical custody; each of which can be either joint (both parents together) or sole (one parent alone).  For as long as the biological parents and their child are all living together, the parents share joint physical and legal custody.  Once a parent re-locates; the custody questions need to be addressed individually.

Legal custody is the right to participate in the big decisions that affect a child’s life.  These are the questions such as religious upbringing, major medical decisions, which schools to attend, and where to live.  Almost every parent is entitled to joint legal custody of the minor children, no matter what the circumstances of the change in living situation.  So, if Mom moves out and leaves the kids with Dad; that does not give Dad the right to sign the kids up for boarding school and convert their religion.  Both parents are still involved in making these decisions for the children’s be interests.

Sole legal custody applies in extreme cases, such as a parent who is incarcerated may not be expected to participate legal guardianship decisions.

Physical custody is the set of responsibilities that go with a child’s day-to-day care and maintenance.  Physical custody is determined by where the child sleeps most nights, who drives her to school most mornings, and who is responsible for making sure that teeth and hair get brushed; homework gets done, and breakfast gets eaten.

Courts look to replicate what is already the truth of a child’s parenting situation when fashioning orders regarding physical custody.  Just because one parent is staying in the marital residence does not necessarily mean that is the parent who should retain sole physical custody.  A child staying in his own room is not the same as a child being parented in the manner to which he is accustomed.  Who rally takes the majority of the responsibilities for your child’s day-to-day maintenance?  If it is you; you should expect to be awarded custody.

If, it is really your spouse; please consider the value of letting that continue unabated.  You can find plenty of other ways to show your child how much you love her.  It does not need to be by changing the rules during a period of transition.

If both parents really do share all parenting responsibilities, consider joint physical custody.  It can be accomplished many ways.  Some families sell the marital residence and use the proceeds to buy two small homes (such as condominiums) near each other. It gives the children autonomy to move freely between the two homes without having to worry that they left a book or glove across town.

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Another method of joint physical custody is called “bird-nesting” in which the children stay home and the parents take turns living there with them; each parent might have a three or four night rotation.  Or, less convenient, but much more common, is the cross-town schlep, in which the relocated parent drives the kids back and forth to school on the days they live in the new home.

What We Love:  There is no single mold for how parents and children divide their time.  The goal is to have post-divorce life be an accurate (and more viable) reflection of what the kids already enjoy and expect.


Published by Sharon Oberst DeFala

Sharon Oberst DeFala has practiced low-impact safe divorce since 1992.

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