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What You Need to Know if You're Awarded Legal Custody

Establishing physical and legal custody of your children is one of the most important issues in a divorce. The child custody arrangement will set the framework for the relationship between the child and each parent, as well as the relationship between parents. If parents can come to an agreement on a child custody arrangement, a judge may accept the arrangement on the presumption that it is based on the best interests of the child.

Legal Custody and Physical Custody

Legal custody of a child means that the parent has the right to make decisions about a child's upbringing. Physical custody of a child means that the parent has the right to have a child live with him or her. Legal custody of a child can be separate from physical custody.

A parent with legal custody of a child can make decisions such as:

  • Where the child will go to school
  • What religion to practice
  • Non-emergency medical decisions

Sole Custody and Joint Custody

Many states prefer to award joint custody. Joint legal custody means that decisions about the child's upbringing are made equally by both parents. Parents can have joint legal custody even if one parent has sole physical custody. In that situation, the child would live with one parent, but both parents would make joint decisions about the child's upbringing.

Although joint custody is the preferred custody arrangement by many courts, a court will award sole custody to one parent if the other parent is deemed unfit; for example, in cases of child abuse or alcohol or drug dependency. A parent with sole legal custody may make all decisions about a child's upbringing without the other parent. Parents with joint legal custody make decisions together and share the legal responsibilities of their child.

Best Interests of the Child

Custody is awarded based on the best interests of the child. The best interests of the child are determined by several factors, including where the parents live, finances and the relationship between the parent and child. The child's preference may also be taken into account in certain circumstances.

In determining child custody, adultery or other misdeeds by one parent may not have a direct effect on a court's decision, even though adultery can be grounds for divorce in many states. Adultery can, however, indirectly affect child custody decisions. Since child custody is decided based on the best interests of the child, a court may consider a child's surroundings and relationships, which could include a non-spousal partner of a parent. If a parent has been convicted of a crime, the court might take that into consideration when awarding custody.