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How does full custody of a child work


Different Kinds of Child Custody

Learn about the differences between legal and physical custody, how sole custody and joint or shared custody works, and what goes into parenting plans.

When parents get divorced, the issue of child custody is usually one of the thorniest problems they have to deal with. Where will their kids live? How much time will each parent get with their children? Who will make the important decisions about the children's lives?

These questions are related to the two main types of custody: physical custody and legal custody. Within each of those categories, there are two basic ways of breaking down custody arrangements: sole custody and joint (or shared) custody. To mix things up even more, some states use terms like "parenting plans" when referring to the arrangements for physical custody or both physical and legal custody.

Regardless of the type of child custody, it's an overriding principle that judges must focus primarily on the children's best interests. But states have their own rules about what goes into deciding which custody arrangements would be in a child's best interests.

Legal Custody

Legal custody is the right of parents to make decisions about their children's upbringing, including:

  • where they'll attend school and whether they'll get other educational resources like tutoring
  • religious instruction and practices
  • participation in extracurricular activities like team sports or music lessons, and
  • health care, including vaccinations and mental health care.

Sole Legal Custody

When you have sole legal custody of your children, you have the right to make all child-related decisions without consulting the other parent. But if you want sole legal custody, you'll have to convince the judge that it would be in your kids' best interests. That might be the case when, for example:

  • one parent doesn't take an interest in the children or in being part of their lives
  • one parent isn't fit to make wise decisions about the kids, because of problems like untreated substance abuse or severe mental illness
  • the hostility and fighting between the parents is so great that it would be very difficult—and hard on their kids—for them to share legal custody, or
  • one parent is abusive.

(Learn how domestic violence affects child custody.)

Joint Legal Custody

When divorced parents have joint legal custody, they share the authority to make important decisions about their children's lives—just as they did when they were married. In most states, joint legal custody is the preference or default after a divorce.

As a practical matter, when one parent is the children's primary caregiver, that parent will often make many of the day-to-day decisions, such as authorizing emergency medical treatment or making routine doctor's appointments. If you and your spouse are working out a parenting agreement before or during the divorce process, you can include details about how you'll communicate and include each other in these decisions, as well as how you'll deal with future disagreements. For example, you might include a provision that if you and your spouse disagree about medical treatment, you'll follow the advice of the child's doctor.

Unfortunately, joint legal custody can sometimes lead to bitter post-divorce battles when parents have strong disagreements about issues like whether their children should receive vaccinations or play football. If you share joint legal custody but exclude your ex from the decision-making progress—or make unilateral decisions over your ex's objections—your ex could take you back to court and ask the judge to enforce the custody orders.

In addition to the stress and animosity that these legal fights can cause, they'll probably be expensive if you've had to hire a lawyer. And in the worst-case scenario, the judge might decide to award sole legal custody to your ex and to change your physical custody arrangements.

Physical Custody

Physical custody refers to the right of parents to live with and take care of their children on a daily basis. As with all custody decisions, judges must consider which physical custody or parenting arrangement would be in the children's best interests.

Sole Physical Custody

If you have sole legal custody, your children will live with you full time. Sole physical custody used to be the norm after divorce. Traditionally, children lived with their mothers, while the fathers had visitation. That's no longer the case, but judges will still typically award physical custody to one parent (the "custodial parent") when it would be best for the children—such as when the other parent:

  • lives so far away that it would be harmful to make the children shuttle back and forth regularly
  • is unfit to live with the children because of substance abuse, child abuse or neglect, or serious mental illness
  • can't provide the children with a safe housing situation, or
  • is incarcerated.

When awarding sole physical custody, judges will usually allow the noncustodial parent a certain amount of visitation time. Even if the noncustodial parent might pose a danger to the kids, the judge may allow visitation with conditions like requiring supervised visitation or drug tests.

Joint or Shared Physical Custody

Over the two or three decades, the trend has been to favor joint or shared physical custody—allowing children to spend significant amounts of time with both of their parents. Judges (and legislatures) have been swayed by consistent research findings that children fare better after divorce under shared parenting arrangements. However, joint physical custody works best if parents live relatively close to each other, as it lessens the stress on the children and allows them to maintain a somewhat normal routine.

Shared physical custody doesn't necessarily mean a 50-50 split. Often, children will live primarily with one parent but spend overnights with the other parent—typically on weekends and during school vacations. With this type of arrangement, the parent with primary physical custody is still referred to as the custodial parent, while the other is the noncustodial parent.

In cases where shared physical custody is closer to 50-50, children might spend four nights a week with one parent and three nights with the other, or they might even alternate weeks, months, or longer periods between their parents. To make things easier on their children, some parents use a joint custody arrangement—commonly called "bird's nest custody" or "birdnesting"—that lets the kids stay in the family home while the parents take turns moving in and out.

Co-Parenting Plans

When parents share joint custody, they usually work out a parenting plan or schedule that fits the children's needs as well as the parents' work schedules and housing arrangements. If the parents can't agree on a schedule on their own, judges will often order them to participate in custody mediation. In fact, some states require mediation in all cases where there are custody disputes. If mediation doesn't work, a judge will have to impose an arrangement.

In addition to detailing when children spend time at each parent's home, parenting plans may often include other details such as:

  • how to arrange exchanges between the parents (drop-offs and pick-ups)
  • how the parents will communicate and deal with requests for temporary changes in the schedule, and
  • paying for the cost of transportation if the parents live far from each other.

Some state laws or court rules spell out exactly what must go into the parenting plans.

Pros and Cons of Joint Physical Custody

Among the advantages of joint physical custody, it ensures that children have continuing contact and involvement with both parents. And, as we've mentioned, research has shown that can have a positive impact on children's adjustment after divorce. Joint physical physical custody also allows parents to share the work of parenting, alleviating the burdens of being a single parent.

Of course, there are disadvantages to shared physical custody, including:

  • the strain on children from shuttling back and forth between their parents' homes
  • the expense of maintaining two homes for the children
  • additional travel expenses if the parents live far from each other
  • potential negative effects on the kids when their parents don't cooperate with each other.

These disadvantages may change depending on the children's ages. For instance, older children are often more concerned about staying close to their friends. So they might be less likely to want to spend time with a parent who lives across town, much less in another state.

Also, if one parent wants or needs to move away, that could upend the shared custody arrangement and lead to a nasty custody battle.

How Does Child Custody Affect Child Support?

The amount of child support is largely based on the parents' respective incomes. However, under state rules for calculating child support, the percentage of time a child spends with each parent may factor into the calculation of support amounts or determine which parent pays support.

Understanding Child Custody | How Custody Decisions Are Made

To understand possible child custody outcomes, you’ll want to learn about the types of custody, who makes decisions about the children, and what factors affect visitation rights.

For many parents, figuring out child custody is one of the most difficult—and most important—parts of a divorce. When children are involved, either the court must decide or the parents must agree on how to handle issues like whether and how custody will be shared, who will make decisions for the kids, and how visitation will work.

Here's an overview of key child custody information for divorcing parents, plus answers to some of the most frequently asked custody questions.

  • Types of Custody Arrangements
  • Who Decides Custody
  • How Courts Make Custody Decisions
  • How to Modify a Custody Arrangement
  • Child Custody FAQ

Types of Custody Arrangements

There's no one-size-fits-all custody arrangement; the terms of your final custody plan are supposed to be tailored to meet the needs of your family.

The final custody order should normally address both physical custody (which parent the child lives with) and legal custody (which parent has the right and obligation to make decisions about the child's upbringing).

Most custody orders divvy up custody in one of the following ways:

  • sole legal custody and sole physical custody to one parent
  • sole physical custody and joint (shared) legal custody
  • joint physical custody and joint legal custody, or
  • sole legal custody and joint physical custody (rare).

When an order specifies that one parent has sole physical custody, the judge will typically create a visitation schedule to ensure the child has the opportunity to enjoy a meaningful relationship with the noncustodial parent.

Who Decides Custody?

As is the case with most family law issues, courts will give a lot of weight to any agreements that parents reach regarding child custody. If parents can work together to achieve a fair and proper custody arrangement, the judge will likely adopt it into a court order. Working together is the best opportunity for parents to control what happens to their families after a separation or divorce.

If you've tried talking with your spouse or participated in child custody mediation, but you still disagree on how to allocate custody and visitation, the court will decide for you. In most states, the judge must investigate and apply specific factors to every custody decision. Once the judge enters a child custody order, it is binding on and enforceable by both parents, even if one disagrees.

How Courts Make Custody Decisions

Almost all courts use a standard that gives the "best interests of the child" the highest priority when deciding custody issues. What a judge considers to be in the best interests of the child depends on many factors, including:

  • the child's age, sex, and mental and physical health
  • each parent's mental and physical health
  • each parent's lifestyle and other social factors,
  • the emotional bond between each parent and child, as well as each parent's ability to give the child guidance
  • each parent's ability to provide the child with food, shelter, clothing, and medical care
  • the child's established living pattern (school, home, community, religious institution)
  • the quality of the child's education in the current situation
  • the impact on the child of changing the status quo, and
  • the child's preference if the child is mature enough to express an opinion.

Assuming that none of these factors favors one parent over the other, most courts tend to focus on which parent is likely to provide the child with a stable environment and better foster the child's relationship with the other parent. When the child is young, this might mean awarding custody to the parent who has been the child's primary caregiver. With an older child, the court's best interests evaluation might lean in favor of the parent who can foster continuity in education, neighborhood life, religious life, and peer relationships.

In tough child custody cases—such as those where one parent is claiming that the other is "unfit"—judges might order a child custody evaluation. Parents can request a custody evaluation even when a judge doesn't. A child custody evaluator can provide information and recommendations that will help the judge decide what's in the child's best interests.

How to Modify a Custody Arrangement

In nearly every state, one of the main priorities for judges is to maintain stability for the child when deciding custody matters. This strong preference to maintain the status quo can make it difficult—but not impossible—for parents to modify existing custody orders; judges understand that changing family circumstances might require updating the current orders.

To modify custody or visitation, most states require the requesting parent to demonstrate that there's been a substantial change in circumstances. Additionally, the parent must also show that the current order no longer serves the child's best interests. If the court agrees to review the case, the judge will review the changed circumstances in light of the same best interest standards that are listed above.

Child Custody FAQ

Does custody always go to just one parent?

No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes one of three forms:

  • joint physical custody (children spend a substantial amount of time with each parent)
  • joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
  • both joint legal and joint physical custody.

In some states, like New Mexico, the law requires courts to award joint custody, except where joint custody would compromise the children's best interests (or a parent's safety). (N.M. Stat. Ann. § 40-4-9.1 (2021).) Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement.

Are courts more likely to award custody to mothers than to fathers?

In the past, many states provided that the court should order the custody of young children (five and under) to the mother. Today, however, most states and courts have either rejected this preference entirely or relegated it to tiebreakers' role if two equally fit parents request custody of their preschool children. Today, no state requires that a judge award a child to the mother without regard to both parents' fitness. Instead, most states now require the court to determine custody based solely on what's in the children's best interests, without regard to the parent's gender.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you might be on equal footing when it comes to who is better situated to have physical custody. In fact, if you have more flexible hours than the mother, you might have an advantage. In any event, the judge will look at what's best for the children. So if you think that you should have primary custody and that you can persuade the judge that it's in the kids' best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way toward eliminating any lingering prejudice against you as a father.

As it turns out, many divorcing parents will work together to determine what's best for the child after they separate or divorce. For example, some couples might agree that a mother will have custody and that the father will have reasonable visitation because the mother has more time, a greater inclination, or a better understanding of the child's daily needs. Judges usually approve any custody agreements entered into by divorcing parents unless they are not in the best interests of the child.

If one parent moves out and leaves the kids with the other parent, does it hurt the moving parent's chances of getting custody at a later date?

It can. Even when a parent leaves to avoid a dangerous or highly unpleasant situation (such as domestic violence), if the parent hopes to have physical custody later, it's unwise to leave the child behind without a firm, written agreement between the parents stating that the arrangement is temporary. Otherwise, the court might interpret the parent's move as a message to the court that the other parent is better suited to have permanent physical custody of the child.

Also, if the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities after a parent moves out, a judge might be reluctant to change physical custody. Any further change might be viewed by the court as an unnecessary disruption in the children's routines.

Suppose a parent must leave the familial home but wants to be the children's primary physical custodian. If the parents don't have an agreement that the move is temporary and won't affect permanent custody, the moving parent should take the children along and, as quickly as possible, file a motion (request) in family court for temporary custody and child support orders.

If the parent who moves out doesn't file quickly, the other parent might go to court first and allege that the children were wrongfully taken. Family law judges frown on a parent who removes the children from home without seeking the court's recognition. A judge might order that the parent return the children to the family home, pending future proceedings to determine physical custody.

For more articles and FAQ about child custody and visitation, see Child Custody, Child Support & Visitation.

Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?

Generally, the court will consider a parent's sexual orientation only if it negatively impacts the child. For example, suppose a child's parent enters into an abusive relationship with a same-sex partner, causing the child to experience domestic violence that requires frequent moves between homes, hospitalizations, or police intervention. In that case, the court is less likely to award custody to that parent. Instead, the court will allocate parental responsibility to the other parent if the judge finds that parent to be "fit" under the law.

However, lesbian, gay, or transgender parents might still experience discrimination from judges who can't set aside their own prejudices when evaluating what's in a child's best interests. These judges might be motivated by their own or community prejudices and might try to conceal the true reasons for their decisions by citing issues other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.

If you are involved in a custody case and are concerned about sexual orientation or sexual identity bias, make sure you consult a lawyer about protecting your rights. You can get attorney referrals from the National Center for Lesbian Rights.

To learn more about legal issues affecting lesbian and gay parents and couples, check out our LGBTQ law section.

Is race ever an issue in custody or visitation decisions?

Judges can't consider the race of the parents when deciding custody or visitation. The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the court awarded custody of the couple's son to the mother. She remarried an African American man and moved to a predominantly African American neighborhood. The father filed a request to modify custody based on the changed circumstances from the marriage and the move. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision.

Who determines how much visitation is reasonable and fair?

When a court awards physical custody to one parent and "reasonable" visitation to the other, the parent with physical custody generally has the power to decide when and how much visitation is reasonable. In other words, unless the parents have a specific calendar or schedule, a noncustodial parent's visitation is often affected by the relationship between the parents. When a custodial parent wants the child to have a meaningful relationship with the other parent, it's more likely that the parents will work together to ensure that there's a truly reasonable visitation arrangement.

Unfortunately, an order that one parent is to have "reasonable" visitation can result in the noncustodial parent having to fight for time with the child. To avoid this problem, many courts require parents to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children. When parents can't agree, the court will create a schedule for the parents to follow. Standard visitation arrangements often include alternating weekends, school breaks, and holidays that occur during the school year, as well as significant visitation in the summer.

Is mediation the best approach to solving disagreements about child custody?

Child custody mediation is a non-adversarial process where a trained, neutral professional (called a mediator) meets with parents to help them reach an agreement about custody and visitation. The mediator does not have the power to make decisions for the parties. Instead, the mediator facilitates negotiations and might suggest solutions. Mediation is confidential—what the parties say in mediation can't be used in court.

Mediation is often a better option than litigation (fighting it out in court) for resolving custody and visitation disputes. That's because:

  • parents usually don't have to hire lawyers or expert witnesses (or pay their fees)
  • mediation usually results in a faster resolution to the disagreement—child custody litigation can drag on for months or even years, and
  • mediation encourages communication and makes it more likely that the parents will cooperate when future issues arise.

Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

Children in divorce

Divorce also affects children. The child must have an official guardian and a home address. In addition, the child has the right to meet with both parents.

  • If you cannot come to an agreement
    • ,
  • housing
  • Guardianship
  • The right to meet
  • If difficulties arose with the right to meet
    • ,
  • child support
  • Surne of the child when divorce
  • The kidnapping (LapsikaAppaas)

If the family has children under the age of 18, and the marriage ends, the following issues must be agreed upon divorce:

  • place of residence of the child,
  • who will be the guardian of the child,
  • how the right to meet will be organized,
  • alimony.

If the parents have agreed on the place of residence of the child, his custody, the right to meet and alimony, then the local social department can approve this agreement. After the agreement is approved by the social department, it receives the same legal force as a court decision.

If you cannot agree on the child's place of residence, custody, visitation rights and maintenance, you can ask for help in the form of a family dispute settlement procedure (perheasioiden sovittelu). If this procedure also fails to reach an agreement, you must file an application with the county court. When making a decision, the judicial authority will take into account the interests of the child and his own opinion. The judicial authority may also request an opinion from the social welfare office in your place of residence.

Find out about the procedure for settling family disputes with the social office of your commune.

For more information about the services of a lawyer and legal assistance, see the InfoFinland page Do you need a lawyer?.

Housing

Always consider your child's best interests when deciding where to live.

Officially, a child can only live in one place. When a divorce occurs, it is necessary to agree on which parent the child will officially live with.

In practice, a child may live for some time with either parent.

Child allowance is paid to the parent with whom the child officially resides. The child's official address also affects the housing allowance paid by Kela.

Guardianship

Child custody means:

  • child care
  • his upbringing
  • managing and making decisions about the child's affairs.

The child's guardian has the right to receive information about the child's affairs from officials.

At the end of the marriage, the child's parents decide on the organization of guardianship over him. Parents may agree on joint custody or sole custody by one of the parents. Guardianship does not depend on who the child lives with. More information about sole and joint custody is available on the InfoFinland website under Single-parent families.

External link Yhden Vanhemman Perheiden Liitto ry

General care and single care External link

Finnish

Right to meet

The child has the right to maintain contact after the divorce with both parents. He also has the right to meet with the parent with whom he does not live.

The right to visit may mean, for example, that the child lives with one of the parents and meets with the other parent every second weekend, and also during the holidays for a certain period of time. If the child is still small, meetings can take place during the day.

The right to visit may be so extensive that the child will live with both parents for the same amount of time. Officially, a child can have only one address. Always consider the interests of the child when making decisions.

In the event of a divorce, you can agree in advance how often the child can see the parent who will be living separately. If you wish, you can make a written agreement about the order of meetings. You can also decide that the order of the meetings will be agreed each time separately.

External linkYhden Vanhemman Perheiden Liitto ry

How to arrange an appointmentExternal link

Finnish

If you have difficulty exercising the right to an appointment

If you have entered into a meeting agreement with the child, but the parent living with the child does not comply with this agreement, then the parent living apart may contact the child inspector at the place of residence of the child. The children's inspector organizes negotiations between parents.

If you think that there is a risk to the child's health and safety when meeting with the other parent, tell the social worker about it. If you have good reason to be so suspicious, you can request that social workers be present at the meeting.

Child support

Both parents are responsible for the maintenance of a child under the age of 18, even if they live separately from each other. The parent who does not live with the child pays child support to the parent who lives with the child.

For more information on child support, see the InfoFinland page Single-parent families.

Link to an external resource Elatusvelvollisten liitto ry

Information for persons receiving and paying alimony Link to an external resource

Finnish

Child's surname upon divorce

The child's surname does not change when the parents divorce. However, the name can be changed. An application for a change of surname should be sent to the Agency for Digital Information and Population Records. If the child is over 12 years old, the written consent of the child is required to change the surname. If the child is under 12 years old, it is also recommended to have a preliminary conversation with him before changing the surname.

Abduction of a child (lapsikaappaus)

We are talking about the abduction of a child when:

  • a child under the age of 16 living in Finland is taken abroad without the consent of the guardian
  • a child taken abroad was not returned to Finland within the agreed period.

Child abduction is a crime in Finland. Contact the police in your area. For more information and advice, please contact Kaapatut Lapset ry.

External link Oikeus.fi

International child abduction External link

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