When a married couple decides to end the marriage, there are a number of important issues that must be deciding during the subsequent divorce process. If the couple has minor children of the marriage, decisions relating to the children will be among the most important issues in the divorce. Custody of the children, for example, must be decided. Custody, however, is actually divided into two categories - physical custody and legal custody. Understanding what is meant by both physical custody and legal custody is imperative if you plan to end your marriage and go through the divorce process.
Custody of minor children in a divorce can be decided by agreement of the parties or by a court. Ideally, the parents will reach an amicable out of court agreement that provides for the custodial and visitation arrangements for the children. A clear understanding of the types of custody a parent can have is essential when considering an agreement. Physical custody refers to the parent with whom the children live the majority of the time. Legal custody, on the other hand, refers to a parent's right and responsibility to decide major issues relating to the children such as where the children will attend school, what religion the children will practice, and what medical treatment the children will receive.
Either type of custody can be sole or joint. In reality, however, courts are reluctant to award joint physical custody unless the parties exhibit a considerable amount of willingness to work together to co-parent after the divorce. Joint physical custody usually requires the parties to remain living in the same area so the children's' lives are not disrupted by living with one parent half the time and the other parent the other half of the time. The parents also need to cooperate with regard to school, extra-curricular and social activities of the children if physical custody is shared. If physical custody is shared by the parties it will also impact the child support ordered as a general rule because the children spend an equal amount of time with both parents. Joint legal custody is more common as it is easier to share legal custody from a practical standpoint.
Custody issues can turn a seemingly amicable divorce into a contentious one overnight. Whether your divorce appears to be headed toward an amicable resolution or an adversarial one it is always best to consult the attorneys at Simon & Gilman, LLP before you begin the process to ensure that you understand your rights and that those rights are protected throughout the process.