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What You Need to Know About Custody

Read about situations dealing with custody and visitation rights.

What You Need to Know About Custody

Let's take a moment to really look at some more detailed definitions. Unfortunately, words mean different things in different places (and I'm not talking about France, New Zealand, and Sumatra; I mean that definitions change from state to state). It's up to you to know the laws and terminology in your state. Go to the library and ask the reference librarian for the family law statutes—and bring along a lot of coins for the copy machine!


Legal custody refers to the decision-making authority for a minor child. Physical custody is the right of a parent to have the child live with him or her. In sole custody, the parent has been awarded full legal and physical custody. In visitation, the parent has been awarded time with a child but has no decision-making authority. Shared or joint custody refers to an arrangement in which both the care and authority are shared by both parents.

What Is Custody, Really?

When a kid has two biological parents who live with each other, both parents are responsible for making choices: where the child will live, whether she goes to public or private school, if she can play with that rude girl Eleanor, and what to pack in her lunch box.

Say the parents split up (it's been known to happen); then who makes those choices about the child's life? (Of course, the older the child is, the more choices he's making himself, but as long as he's a minor, many of those choices are being made for him.)

Whoever has legal custody is in charge of decisions about the child's upbringing. Physical custody is the right of the parent to have the child live with him or her. A parent might have joint physical custody, with the child living in both houses, but have sole legal custody. Or, in some states, parents might have shared legal custody, in which case, both are responsible for making decisions about their child.

Sometimes, one parent has sole custody, that is, that parent has been awarded full legal and physical custody. The parent who doesn't have sole custody usually has visitation, the right to spend time with the child without the authority to make decisions.

More and more, people are arranging for shared physical and legal custody, which means that all the responsibilities, caretaking, and decisions about the child are shared.

Stepping Stones

You don't really need an attorney; you can do your own custody and or visitation agreements, and it's probably better for everybody if you do. For help (and suggested agreements), check out Mom's House, Dad's House: A Complete Guide for Parents Who Are Separated, Divorced, or Remarried, by Isolina Ricci.

Deciding on Custody

If the two ex-lovebirds decide to go their separate ways and agree on custody issues, life's a breeze. There's no legal problem; the courts won't even ask you about your arrangements.

But if complete agreement can't be reached between them, then there are usually custody battles. Such battles (an apt name!) can be expensive and emotionally trying for the parents, and they definitely take their pound of flesh from each child. If the exes can do one thing right in life, it would be to resolve custody issues amiably, or at least privately. Kids have a hard enough time adjusting to the split-up and spending time with each parent separately. They suffer terribly over custody battles, especially when the battles end up in court. Fortunately, only 2 percent of custody battles actually go to trial.

Custody Is Always Renegotiable

Keep in mind that no custody (or visitation) arrangement is final. Any decision made (whether individually or by the courts) can be changed or renegotiated if circumstances change. And hey, guess what, Stepparent, you're a circumstance!

All custody decisions should be made with the best interests of the child in mind, and this criterion is used by all courts (should you end up there). It's what most custody battles focus on. But how the courts apply this best-interest clause varies widely. Talk about a mixed-up mess to explain! Policies and treatment of custody disputes vary from state to state and jurisdiction to jurisdiction, and they continue to change and evolve. I can't tell you what the law is like where you live because I don't know!


Now let's talk about visitation rights. When one bioparent is awarded sole custody of a child, the other bioparent is generally awarded visitation rights. That means that he or she gets to visit with the child.

The terms and schedules of visitation are sometimes determined by the parents and sometimes by the court system, and there's great variation among them. The most typical schedule for parents who live near each other grants the noncustodial parent visitation every other weekend, from Friday to Sunday evening. When parents live a long way from each other, schedules like this may not work. Instead, the child may spend extensive time during summer and winter vacations.

Visitation, like custody, can and will be changed as needs change, or if circumstances change. (In the case of a gay parent, for instance, visitation may be curtailed if the parent begins living with a partner; see The Gay or Lesbian Stepparent or Gay or Lesbian Stepparents and the Law.)

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