There are two types of custody that are discussed when a child is involved in a divorce: legal custody and physical custody.
Legal custody addresses who will make major decisions for your child. Major decisions include education, major medical and healthcare decisions and religion. Major decisions do not include haircuts, play dates, extracurricular activities and other day to day activities and scheduling for your child. These are handled by whichever parent has the child on a particular day. There are two options for legal custody: joint legal custody or sole legal custody.
Joint custody: If you have joint legal custody you and the other parent of your child have to agree on decisions in the above categories. If you cannot agree then you will need to attend mediation and possibly have a hearing in court to have the decision made for you, based on the court's determination of what is in your child's best interest.
Sole custody: If you have sole legal custody then you alone make the child's decisions regarding education, healthcare and religion. You will likely have to advise the other parent about the decision being made but the decision is yours to make. This isn't an unquestioned authority however. If the other parent feels that your decision is contrary to your child's best interests he/she may file a motion with the court and ask the court to stop you from executing your decision.
When considering what type of legal custody arrangement is best for your family I always advise my clients to think back over the course of the relationship and decide whether in all your fighting and arguments was there disagreement about the schools your child should attend, about how your child should be treated medically when ill or about what religion, if any, your child should have in his/her life. Many people find that although they can no longer get along in a marriage or relationship they do not differ philosophically on these fundamental issues for their child.
This is an important thing to really contemplate before you go forward in a divorce because it will shape the path of your divorce. Usually, when there is a dispute about legal custody the contention and discord in a divorce are exponentially higher. The divorce usually takes longer and costs more. In most situations, joint legal custody is an option that will work, even if the parents fight incessantly about seeing and sharing their child. This is not to say that there are not times when sole custody is truly in the best interests of the child. I just advise you to think long and hard before you attempt to seek sole custody. Legal custody has such a limited scope and impact on parenting your child that your battles may be better fought in physical custody and parenting time, which I will discuss tomorrow.
And remember...
While you may find helpful insights or bits of information in this blog as it progresses, keep in mind that this is only being provided as general information to help you and others get started in this process. My first and best advice is to consult a lawyer knowledgeable in the area of family law. This is the only way to truly obtain advice directly pertinent to your situation. I am available for consultation by calling (928) 458-5026 to schedule an appointment.
