The Basics of Child Custody

Whether you are in the process of divorce or are a single parent, a dispute over child custody can be a nerve-wracking challenge for anyone. If you are involved in a custody dispute, you should understand the fundamentals of child custody law.

While custody statutes may vary from state to state, you need to be aware of the basic legal concepts of legal custody, physical custody and the best interests of the child.

Legal Custody

Legal custody refers to the right of the parents to make decisions concerning the health, education, welfare and safety of their children. Parents may have joint legal custody, meaning both parents have equal decision-making rights in relation to their children, or sole custody, where only one parent has the right to make decisions without the input from the other parent.

Naturally, the joint legal custody arrangement works best when the parents have a more amicable relationship and can agree on issues involving the children.

Physical Custody

Physical custody refers to the parent with whom the children live. The parent who has primary physical custody takes responsibility for the day to day caretaking and decision making.

Shared physical custody arrangements where the children split their time at each parent’s home are not uncommon. In this case, the parents can arrange a residential custody schedule which may alternate days, weeks or months that the children spend with each parent.

In the absence of a shared physical custody arrangement, the parent without physical custody of the child would have visitation rights, or what some courts refer to as parenting time, based on a visitation schedule agreed upon by both parents.

Best Interests of the Child

If parents cannot agree to a custody arrangement, the family law court will make a custody decision keeping in mind the best interests of the child. When deciding what custody arrangement would be in the best interests of the child, the characteristics and situation of each parent need to be assessed.

The court may take into account any history of domestic violence, the overall fitness of the parents and the extent and quality of the time the parents spent with the children in the past.

Other relevant issues which may be considered are the job responsibilities of each parent, the stability of the home environment and geographical proximity of the parents’ homes, and the willingness of each parent to communicate, cooperate and agree with each other in matters relating to the children.

Additionally, the court may also look at other criteria not directly related to the parents.  Other factors such as the age and number of children in a family, a child’s relationship with any siblings, the needs of the child, the quality and continuity of the child’s education, and the preferences of the child, may be deemed important as well.  Generally, the older the child, the more likely the court will accommodate a child’s preference.

Since you probably understand the specific needs of your family better than a judge, a best case custody scenario would be to work out a mutually agreeable custody arrangement with the other parent so the court doesn’t have to do it for you.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.


Written by 

New Jersey lawyer turned blogger, podcaster and legal changemaker.