When two spouses end a marriage, a court will decide how custody of the couple's minor children is divided between the parents. Custody consists of both physical and legal components, which are two different issues for the court to resolve. The court also will decide whether one parent should have sole custody of the children or whether the parents should share joint custody of the children.

Contrary to stereotypes and historic practice, courts no longer presume that the mother should be awarded custody of a child. Courts now weigh the best interests of a child in making their custody decisions by considering the physical and mental health of the parents, their ability to provide for the child’s basic needs, their emotional relationship with the child, the lifestyle of the parents, the educational situation of the child, and the preference of the child, if he or she is old enough to state a rational preference.

Physical and Legal Custody

Giving a parent physical custody of a child means that the child will live with this parent. Physical custody can be sole or joint, often depending on how much time the child typically spends with each parent and how close the parents live to each other. If a court decides on sole physical custody for one parent, however, the parent without physical custody usually will have visitation rights with the child.

Giving a parent legal custody of a child means that the parent has both the right and the duty to make critical decisions about how to raise the child. This is usually awarded to both parents jointly, allowing each of them to have an impact on the child’s education, religious affiliation, and any medical treatment. Parents who violate a court order providing for joint legal custody may face consequences. The parent whose joint legal custody right is deprived has the right to take the other parent to court and ask a judge to enforce the custody arrangement. This is not only costly but disruptive to everyone in the family, especially the children.

While courts have shifted toward granting joint custody more frequently, they still will grant sole custody in some cases when it seems to be in the child’s best interests. For example, one parent might have abused or mistreated the child. A parent’s history of alcohol or drug addiction also might make the court more willing to grant the other parent sole custody. Sole physical custody does not necessarily go hand in hand with sole legal custody. In many cases when a court awards sole physical custody to one parent, the other parent may still have substantial parenting time and a voice in key decisions involving the child.

What to Expect from a Joint Custody Arrangement

Since sole custody has faded into less frequent usage, it is worth exploring in advance what you can expect from a joint custody arrangement. Once the court decides to split custody between the parents, they will have the chance to work out a schedule that divides the child’s time between them. If they cannot agree, the court will intervene to impose a schedule. Most schedules are simple arrangements of alternating weeks or months, or spending weekdays with one parent and weekends with the other parent.

The advantages of joint custody are obvious. Most children grow up better adjusted if each parent plays a role in their lives, as long as that role is positive. Each parent also has the opportunity to watch the children grow up, and experience the key moments in their early lives. On the other hand, joint custody can place additional stress on parents. It may be expensive and logistically complex for children to regularly travel between two residences, each of which is equipped for them to live. But many parents believe that staying active in the lives of their children is more than worth bracing themselves for occasional headaches, extra expenses, and continued contact with their former spouses.

Sometimes one parent will argue that the other parent has not met the terms of the custody agreement and contributed a fair share to the cost of raising the children. To avoid this type of problem, people in a joint custody arrangement should keep records of financial expenses involving the children, whether for basic needs such as food, clothing, and medical care or for school and leisure activities. As in most areas of family law, an ounce of prevention is worth a pound of cure.

Child Custody and Religious Affiliation

Heated disputes can arise between two parents of different religions, each of whom wants the children to share his or her faith. This creates a thorny issue for courts to resolve because it pits two important interests against each other. In most child custody matters, the best interest of the child takes precedence over any interests of the parents. In the context of religion, however, this right clashes with the constitutional right of the parents to raise their children as they see fit. The First Amendment protects the right to free exercise of religion by parents and allows them to raise their children in the faith that they choose, unless it would harm the children’s well being.

Unfortunately, there is no single rule that courts will apply. Many states have found different solutions when weighing this balance. In some states, actual harm to the child must be shown before a court will restrict a parent’s First Amendment right to raise the child in the religion that the parent chooses. Other states take a more speculative approach, looking at whether the parent’s exercise of First Amendment rights will risk harming the child in the future. And yet another group of states will allow both parents in a joint custody arrangement to integrate both religions in raising the child. In sole custody arrangements, this last group of states will give the parent with legal custody exclusive control over the child’s religion.

Last updated October 2018