For parents who are beginning the divorce process, the question of child custody weighs heavily on their minds. Is a joint solution the best, or is it better for one parent to have sole custody while the other has visitation rights?

To start, it’s important to remember there are two types of child custody parents will need to consider: legal custody and physical custody.

Types of custody

Physical custody, of course, determines with whom the children will reside. Joint physical custody does not necessarily mean an even 50/50 split, as it is sometimes logistically better for the children to spend more time with one parent. That parent is the “primary custodial parent.”

Legal custody grants the right to make important decisions for the children. Legal custody is not dependent on that parent having physical custody – even if they do not live with the children, they still have the right to make these decisions.

How does legal custody work?

Legal custody can be jointly held or solely appointed to one parent. Whoever has legal custody has the right to make decisions about the children’s welfare, including:

  • School or child care
  • Religious activities or institutions
  • Psychiatric, psychological or other mental health counseling or therapy needs
  • Doctor, dentist, orthodontist or other health professional needs (except in emergencies)
  • Sports, summer camp, vacations or other extracurricular activities
  • Travel
  • Residence

Parents who share legal custody have the right to make these decisions, but do not legally have to agree on every aspect of the children’s lives. However, parents can avoid problems or ending up back in court by communicating openly and compromising with one another.

What if we don’t agree?

If parents can reach an agreement on legal and physical custody through negotiation, a judge will generally sign off on it. But if the parents cannot agree, it becomes a contested custody case.

The court will order evaluations in order to determine a final ruling. It is not uncommon for a judge to grant parents joint legal custody but grant sole physical custody to one parent, granting the other parent visitation.

Parent should do their best to negotiate a custody agreement for both legal and physical custody, as it is less time consuming, expensive and emotionally draining for both parties. It also gives both parents more control in determining what is best for the children’s future and who will have a say in those decisions.