When I work with couples in mediation to come up with a parenting plan for their divorce or separation, the conversation centers around their actual arrangements (mostly time-sharing and communication) for parenting their kids.  At the end of the conversation, however, I always have to bring up the subject of “custody.”  This is because the court needs to know what the couple has decided about custody.  So does custody matter and if so, how?

custodyFirst, let’s define what we are talking about.  There are two types of custody in the law: legal custody and physical custody.  Both types of custody can either be sole (just with one parent) or joint (shared by both parents).

Legal Custody

Legal custody refers to the right and responsibility to make decisions related to the health, education, and welfare of the child.  If there is sole legal custody, only one parent can make these decisions.  Joint legal custody is the norm, unless one parent has really checked out, has a serious drug problem, etc.  Joint legal custody gives each parent the right and responsibility to make these big decisions.  They may make them individually when necessary (say in an emergency), but it’s implied that in general they will try to make them together.  If there are any decisions that the couple insists must be always made together (such as say an elective surgery for a child), these types of decisions should be explicitly spelled out. If it’s agreed that only one of the parents will make a certain type of decision, this can also be spelled out.

Physical Custody

Physical custody refers to the time periods during which a child resides with and is under the supervision of a parent or other person.  Sole physical custody indicates that one parent is providing the home for the child and the other parent has “visitation” parenting time.  Joint physical custody means each parent has significant periods of physical custody.  Parents working out their own parenting agreements can designate joint physical custody even when the child spends much more time at one parent’s home than at the other’s.

When there is joint physical custody, it’s normal to indicate whether either parent is providing the primary home and is the primary caretaker for the purpose of possibly receiving public assistance benefits.

Joint Custody

Joint custody is most common.  It means that the parents are sharing joint legal custody and joint physical custody.

So Does Custody Matter?

Generally no.  This assumes an agreement has been reached to share joint custody. This is because most spouses after the divorce continue to work together as parents without the intervention of governmental third parties.

However, a designation of sole legal or sole physical custody could be very important.  Sole legal custody gives one parent decision-making power over matters such as schooling and medical care.  It will stay with this parent unless and until the parent either agrees to share decision-making or is ordered to do so by a court.

Sole physical custody gives one parent a leg up in move-away decisions.  It also precludes the other parent from receiving child-related public assistance benefits such as CALWORKS.

Getting a court to change sole physical custody to joint physical custody (or sole legal custody to joint legal custody) may first require convincing the court there has been a substantial change of circumstances since the original sole custody designation. The court would definitely need to be persuaded that a change of custody would be in the best interests of the child.

So there are just two main ways that custody designations could matter:

  1. When a court is later required to make decisions concerning the child and
  2. When a parent wants to apply for child-related public assistance benefits such as CALWORKS

Therefore, the importance of custody designations rises in proportion to the likelihood that the couple will find themselves either in court or applying for government benefits concerning the child.

In their divorce agreement, if the couple wants to avoid “disadvantaging” either spouse as regards custody, they could:

  • Agree to joint (legal and physical) custody
  • Specify that they want this agreement to be a final judicial determination of custody under the case of Montenegro v Diaz.

On the other hand, a spouse who thinks that the best interests of the child would be served by either sole legal or sole physical custody (or both) may well want to argue for this.  This, however, is often not acceptable to the other spouse who might see themselves as being disadvantaged.