Who decides custody when we separate?

You and your partner, as the parents, are the best people to decide the custody arrangements of your child or children should you choose to separate. However, if the two of you do not agree, you may need the assistance of an attorney. This can easily be the most difficult type of litigation that you may ever address—emotionally and legally—because it involves your children.

The words you are always going to hear in custody court are: “What is in the best interest of the child?” The problem is that you and the other parent may not agree on what is in the best of interest of your child.

There are two categories of custody:

Legal Custody Legal custody is the right to make major decisions on behalf of the child, including, but not limited to, medical, religious and educational decisions. But for extenuating circumstances, legal custody is usually shared.

Physical Custody Physical custody is the actual physical possession of the child. The different types of physical custody are:

a. Primary Physical Custody - There are 365 overnights in a calendar year. Primary physical custody means that you have more than ½ of the overnights in a calendar year.

b. Partial Physical Custody – This occurs when you have less than ½ of the overnights in a calendar year.

c. Shared Physical Custody – This is also referred to as a 50/50 schedule. There are 14 overnights every two weeks. Shared legal custody would mean that each party has seven of those overnights. This could be consecutively or nonconsecutively. For example, it could be alternating weeks. Another example is two nights with one parent, two nights with the other parent and alternating the next three nights.

d. Sole Physical Custody – This is the right of one individual to have exclusive physical custody of the child so that the other parent does not see the child.

e. Supervised physical custody – This occurs when the custodial time is with an agency, an adult designated by the court, or an adult agreed upon by the parties who will monitor the interaction between the child and the other parent.