Types of Custody
Broadly speaking, there are two major types of custody: physical and legal custody. Physical custody deals with which parent the child resides with when. Legal custody deals with the legal authority to make decisions on behalf of the children. The court starts with the assumption that both parents should continue to be a part of their children’s lives, unless there are other reasons for them not to be. In addition, physical and legal custody can be split between the parents in different percentages or equally and are not required to be the same percentage between the two.
The best interest of the child standard requires the court to give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper in the best interests of the children. The court shall consider all relevant factors which may include:
Determining Child Custody
Determination of physical custody can be made by the parties, subject to the court’s approval, or directly by the presiding judge at trial. Regardless of which method is used to determine physical custody, the best interest of the child/children will be considered by the court before any custody arrangement is ordered into by the court.
Joint custody is a 50/50 custodial arrangement, where the child spends an equal amount of time with each parent. Often times, joint custody also involves parents sharing decision making responsibility concerning the child’s education, extracurricular activities, healthcare and religious upbringing. While no one solution is right for everybody, children benefit from the ongoing involvement of both parents and a joint custody arrangement may be a way to ensure that both parents maintain an active role in the lives of the children. However, a joint custody arrangement may be difficult to maintain if the parents are not living in the same area or if the parents cannot work well together.
Determining a parenting plan can be challenging. The Fourth District Court offers additional information, to include sample plans, on its website. Things to consider when determining a parenting plan:The age, temperament and social adjustment of each child.
- Any special needs of each child (medical, developmental, educational, emotional or social).
- The quality of relationships between siblings and any other extended family members.
- Each child’s daily schedule.
- Caregiving responsibilities of each parent before the separation.
- How you would like to share responsibilities both now and in the future.
- Availability of each parent as a caregiver.
- Potential flexibility of each parent’s work schedule.
- Distance between each parent’s home, workplace and children’s schools.
- The ability of parents to communicate and cooperate with each other.
- The ability and willingness of each parent to learn basic caregiving skills such as feeding, changing and bathing a young child; preparing a child for daycare or school; taking responsibility for helping with homework; assessing and attending to each child’s special emotional and social needs.
When designing your parenting plan, you should be specific about such things as:
- Who will do the driving for pick-ups and drop-offs?
- What time will holiday and vacation periods begin and end?
- How much advance notice is required for choosing vacation times?
- Who will be responsible for childcare when a child is sick and unable to go to school?
- Who will schedule routine medical and dental appointments?
- Who will be responsible for buying presents for the birthday parties to which your child will be invited?
- How will you share the responsibility for your child’s birthday celebrations?
- If one parent is unavailable during that parent’s scheduled time, should the other parent be offered the opportunity to be with the child?
The parenting plan needs to be as detailed as the parties need it to be. It will need to be more detailed the more conflict there exists between the parties. Information divided into age groupings based upon developmental norms that may be helpful in developing a parenting plan is available at Planning for Shared Parenting: A Guide for Parents Living Apart. This booklet was written in 2005 under the sponsorship of the Massachusetts Chapter of the Association of Family and Conciliation Courts (AFFC).