What is legal custody?

Custody (or “legal custody,” as some people call it) is the legal responsibility for primary care of a minor. Custody includes the primary right to make decisions with respect to the child’s care, education and upbringing. Although a child usually resides primarily with their custodial parent, custody does not in and of itself mean that a parent spends a certain amount of time with the child. Rather, custody refers mainly to decision-making authority, not parenting time.

What are the different types of custody?

Custody is either sole or joint. Sole custody occurs where one parent has primary responsibility for the child’s care. Joint custody occurs where the parents share primary responsibility for the child’s care. Courts do not have the authority to order joint custody unless the parties agree to share custody. Accordingly, joint custody only arises through settlement.

Attorneys sometimes refer to a third category known as “split” custody. Split custody is actually just a rare variation of sole custody that can arise in families with multiple children. In a typical split custody case, both parents are awarded sole custody, but of different children. To offer a simple illustration, Mother might have sole custody of Son while Father has sole custody of Daughter, or vice versa.

Who gets custody?

If the parties agree to share custody, custody will be joint. If, however, one party does not want to share custody, then sole custody will be awarded to one parent. The legal standard is the “best interests and welfare of the child,” meaning that the court will award custody to the parent who the court trusts the most to care for the child. Many parents participate in custody evaluations by licensed professionals. These evaluations usually take weeks and culminate in reports with specific recommendations as to custody and parenting time. In circumstances not involving abuse or neglect, the parent who has been the child’s primary caregiver will usually be awarded custody.

Can the child choose who gets custody?

As a matter of law, no. The court may give weight to a child’s choice (unless such choice is clearly against the child’s best interests), but will consider all of the evidence before ruling on custody. As a practical matter, courts are likely to give considerable weight to the decisions of children in their mid-to-late teens.

Can someone other than a parent get custody?

The first issue is: who is the legal parent? The legal parent is not always the biological parent. Adoptive parents, for example, are legal parents with full parental rights, including the right to seek custody. In addition, where a child is born during a marriage, the husband is presumed to be the parent until it is proven otherwise, even if it is obvious that the husband is not the child’s biological father.

In addition to legal parents, third parties such as grandparents, stepparents or any other person who has established emotional ties sufficient to create a “child-parent relationship” can get custody in unusual situations where the legal parent is proven to be acting not in the child’s best interests.

After custody is established, what are the rights of the noncustodial parent?

Non-custodial parents are entitled to reasonable parenting time, provided that the parenting time is in the best interests of the child. Non-custodial parents are also entitled by statute to access the children’s medical and school records and to consult with staff regarding the child’s welfare. In addition, non-custodial parents may authorize emergency medical care if the custodial parent is unavailable.

Non-custodial parents can also move to modify custody and parenting time arrangements. Custody and parenting time orders may be permanently modified where the moving parent shows that a “substantial change in circumstances” has occurred with respect to the child’s interests. Abuse or neglect often amount to a substantial change in circumstances. In addition, courts sometimes find a substantial change of circumstances where the custodial parent excessively withholds parenting time from the other or, in contrast, sacrifices their own parenting time by voluntarily leaving the children with the non-custodial parent for significant periods of time.

In addition to permanent modifications, non-custodial parents may request emergency temporary custody in circumstances where the child is in immediate danger. Because of their urgency, motions for emergency temporary custody may be brought ex parte (without the other parent present).