Child custody can be a very contentious issue in a divorce—and at times, the language that we use to discuss and define child custody arrangements can also be the subject of debate.
The basic terms aren’t too controversial. “Legal custody” means the right to make decisions about your child—things like education (public, private, or home-schooling?), medical care (braces or not?), and religious upbringing. “Physical custody” refers to the child’s physical presence in your home.
(See Legal & Physical Custody for more information).
The terms “sole” and “joint” can be slightly more complicated. It’s very common for parents to share joint legal custody so that they both have the legal right to have a say in decisions about the child. Unless the parents can’t get along at all and every decision would be a battle, judges are likely to award joint legal custody. When it looks like joint legal custody would lead to a lot of conflict, however, the judge will award one parent sole legal custody, or sometimes will designate one parent as having the “tie-breaker” vote if there’s a disagreement.
The fact that two parents aren’t good at making decisions together doesn’t mean that they don’t both want to play a significant role in a child’s life. For a parent who is very involved with a child, a ruling that the other parent gets sole legal custody can feel like a slap in the face. On the other end of the spectrum, a parent who does a great deal of the day-to-day caretaking may feel like a designation of joint legal custody fails to acknowledge that role.
The bottom line is that while the words do have legal significance, because a parent with sole legal custody can overrule the other parent’s wishes, the words become irrelevant if you and your spouse work together to make the best decisions for your kids.
When it comes to physical custody, some of the same issues can come into play. Parents can share joint physical custody even if the child doesn’t spend exactly equal time with both parents—joint physical custody just means that the child spends significant time with each parent. Often, a parent who has spends less than half time with a child still considers it very important that the legal designation is for joint custody.
If the child lives primarily with one parent, however, the court will often award that parent sole physical custody, usually with “reasonable visitation” to the other parent. A parent with whom the child lives most of the time is often called the “custodial parent” or “residential parent,” and the other parent is the “non-custodial” or “non-residential” parent.
The biggest controversy in recent years has been over the term “visitation,” which has been in use for decades to describe the time that a non-custodial parent spends with the child. Many parents feel that the time that they spend with their kids isn’t a “visit,” but is time that they spend parenting the children just as the custodial parent does. Instead of using the term “visitation,” they choose to use the term “parenting time” instead. The alternative language is starting to catch on—after all, it’s a fair point, as non-custodial parents are indeed full parents, not visitors with their children.