Child Custody Law – What is Child Custody and how is it Determined

If you are going through a divorce, plan to divorce or otherwise need to know more about child custody, then the following guide will help you understand the basics regarding child custody.

What is Child Custody?

Child custody refers to the legal control over children’s care. A parent who has custody will typically have the child live with them all of the time or most of the time, whereas the parent who does not have custody will have a set visitation schedule and rights regarding asking about the children through a process called ‘access.’

Types of Child Custody

There are several different types of child custody. The child custody type will influence factors such as who lives with the child, who has say over decisions regarding the child, and so on. The following are the three primary types of child custody.

1. Sole custody: Sole custody refers to one parent who has singular custody over the child. Legally, the child will live permanently with the parent who has sole custody. A parent with sole custody will also have the legal ability to make the important decisions about the child, even without the agreement of the other parent. When one parent has sole custody, the other parent may still have access rites.
2. Joint custody: Joint custody refers to both parents having legal custody over the child. This means that both parents have a share in making important decisions regarding the child, and both have legal access to control and care over the child. When joint custody is arranged, the child may either live jointly with each parent on a part-time basis or with one parent. Joint custody involves a significant amount of co-operation with both parents in order to be successful.
3. Shared custody: Shared custody refers to custody wherein the child lives with each of their parents at least 40% of the time. The specifications regarding shared custody will vary on a case by case basis.
4. Split custody: This is a relatively new concept in regards to child custody. Split custody is considered to be a variation on joint custody. Split custody refers to a situation where there is more than one child from the marriage; in split custody, each parent receives sole custody over one or more children.

How is Child Custody Determined?

Child custody is determined in several ways.

First, child custody may be determined by a mutual agreement between spouses. Courts will not interfere–in most cases–if both parents have agreed to custody and/or access rights. Parents are encouraged to come to a mutual agreement regarding custody and arrange it to be processed in a document such as a separation agreement.

In some cases, the courts may decide custody. This is typically done if both parents cannot come to a mutual agreement regarding custody.

The courts will use many factors to determine custody, including: the age of the child, whether or not the parent is likely to allow the other parent access to the child, stability of the home environment, the ability of the parent applying for custody to provide for the child, and so on.