Types of Child Custody Arrangements

In the past, sole custody by one parent was the standard form of custody. Under sole custody, one parent was awarded both the physical custody of the child (the right to have the child live with the custodial parent) and the legal custody (the right to make all of the major decisions relating to the up-bringing of the child). Decisions regarding which school the child should attend, whether the child should have medical attention, what religion the child should be taught, and all decisions regarding the child's activities, conduct, and well- being are the responsibility of the parent with sole custody. In most sole custody arrangements, the non-custodial parent is afforded some type of reasonable visitation rights unless there is a danger of harm to the child. This form of custody arrangement, with sole custody to one parent and liberal visitation for the other parent, is still the predominant method used in the majority of divorce situations involving children.

Joint or shared custody, on the other hand, is an attempt to allow both parents a voice in the major decisions involved in the raising of a child. Joint custody is generally divided into two separate rights:

• joint physical custody (actual custody of the child); and
• joint legal custody (rights to share in important decisions regarding the child).

While both parents may be awarded joint physical custody of a child, one parent is generally still awarded sole physical custody of the child, with the other parent being allowed reasonable visitation privileges. However, both parents are awarded joint legal custody of the child. This rather confusing terminology simply means that both parents will continue to share the rights and responsibilities that come with parenthood. They will both have a right to jointly make the major decisions that will affect the child's life: religious, educational, medical, and social decisions. Naturally, the parent with actual physical custody for the majority of the time is allowed individual control over the minor day-to-day decisions that must be made. In many joint custody situations, the actual physical custody time a child spends with each parent mirrors sole custody situations. It is the decision- making process affecting the child that is the responsibility shared by the parents.

Divided or alternating custody is another form of custody (in some areas this is referred to as split custody; in others, this is referred to a joint physical custody). Under this form of custody, each parent is awarded actual physical and legal custody for alternating periods of time. A child may be awarded to each parent for 6 months out of a year, or for alternating months or weeks. This type of custody arrangement is not generally favored by either the courts or child psychologists. It is seen as emotionally difficult for a child to be continually shifted back and forth between each parent, without a sense of where their “home” is truly located. In some situations, however, it may be appropriate.

Another alternative, which has also proved to be difficult for the children involved is also known as split custody. This type of custody has been used in the past to attempt to achieve a technical fairness when there is more than one child by giving each parent physical custody of one or more of the children. For the children involved, however, this constitutes not only a splitting up of one's parents but also a forced separation from one's siblings. Arrangements of this type are not favored by courts.

Currently, there seems to be a general national trend towards approval of joint custody arrangements. The encouragement of frequent and continuing contact with both parents is clearly preferable to fostering single-parent childhoods for children of divorce. These types of arrangements work well and are a benefit to the child, however, only if both parents can maturely cooperate in the necessary decision-making. For joint custody to be successful, both parents must be willing to compromise for the sake of the child, and both parents must be willing to consider the well-being of the child as the most important factor. In situations where there is genuine hostility between the parents, however, one parent should generally be granted sole physical and legal custody. This is often the clearest and most definite method to establish which parent has the necessary authority to make the major decisions.Some states have established a legal preference for joint custody, while others clearly state that there is no preference for one particular type of custody. Most states specifically allow for joint custody, while others have no particular statutory authorization for any type of shared custody. In all states, however, there is legal precedent to allow custody arrangements which are most beneficial to the children involved.

The most recent trend in custody legislation and court decisions provides one of the most common-sense approaches to the problem. Increasingly, courts are looking at a child's day-to-day circumstances in an effort to determine which parent has been the primary care-giver of the child. The parent who has provided most of the day-to-day care for the child during the marriage is then considered to be the most likely candidate to continue on as the primary custodian of the child after the divorce. The preference is given to the parent that has actively participated in caring for the child and performed the majority of the parenting activities: preparing meals, readying the child for sleep, sharing in their playtime, dealing with medical problems, participating in their education, etc.

This method does not presuppose that either parent has an entitlement to being awarded custody, but rather is based on an examination of the reality of the burdens of parenthood. The decision is based on the practical considerations of which parent has provided the most time, care, and guidance to the child prior to the actual divorce. It allows each parent an equal right to earn the custody of a child by providing care for the child before the divorce proceeding begins. This method of selection of the parent to have physical custody places the greatest emphasis on who has been providing the most parental care for the child prior to the divorce. Selection of the primary care- giver as continuing custodian generally fosters a home life of stability and continuity for the child. In the family upheaval caused by divorce, this factor deserves considerable attention.