Revised Jan 2021
Once you determine the right jurisdiction and find your lawyer, the next thing to think about is what kind of custody arrangement you will seek. The terms can get a little confusing, but it’s not that complicated.
The words “sole custody” means one parent has custody, while the term “joint custody” means both parents share custody approximately equally. Think of “joint custody” as nearly 50/50 and “sole custody” to something closer to 75/25.
Additionally, there is also “physical custody,” which refers to who the child resides with, and “legal custody,” which refers to who has legal decision-making authority. A co-parent can have either sole or joint physical custody and sole or joint legal custody.
Most (but not all) states differentiate between legal custody and physical custody, meaning they are two separate issues that need to be resolved individually. Alternatively, some states consider them to be connected, meaning they are a package deal. In these states, sole physical custody comes with sole legal custody attached to it, and joint physical custody comes with joint legal custody attached. Again, most states make a distinction such that you can have sole physical custody and joint legal custody, as was the case with Jessica case in Pennsylvania, as well as my case in Maryland.
If you have sole physical custody, it means the child lives with you, and the other parent has visitation rights. If you have joint physical custody, it means the child splits his time nearly 50-50 between the two homes. Joint physical custody is possible only if the two homes are reasonably close geographically. My attorney made it clear to me on day one that there was no way I would win joint physical custody in a trial if I lived in New York and Mom continued to live in Maryland. It just wasn’t in the child’s best interest to travel back and forth that sort of distance every few days. I could hardly argue with that, and I could not relocate due to my profession, so I had to settle for standard visitation rights rather than joint physical custody.
Joint physical custody with a 50-50 time split is most common in divorce cases where the parents will live nearby each other, and it can be argued the child is better off seeing each parent equally because that is what they are already used to. Older kids can definitely split their time 50-50 between two parents living in the same school district, but with infants, historically there has been a higher chance that one party (usually the mother) will have sole physical custody.
When infants are involved, sometimes the mother pushes hard for sole custody, and opinions vary widely on what age is right for children to spend large amounts of time away from her. While the bar is higher for joint physical custody when infants are involved, we believe there is no reason a child older than one year cannot spend equal time with both parents, assuming they live nearby each other. Of course, if either parent has some sort of substance abuse problem, then all the expectations are thrown out the window.
Co-parents can agree to almost any arrangement that works for them. In some divorce cases, the children stay put in the same house, and each parent spends a few nights with the child and then moves out so the other parent can move in for a few nights. This sort of arrangement is unusual and probably not going to work for most of you.
If the parents cannot come to an agreement, the judge will eventually decide the physical custody issue. We believe when infants are concerned, judges may be more likely to award the mother sole physical custody and give the father frequent visitation rights rather than 50/50 joint physical custody. This is what both Jess and I were told ten years ago.
You may hear the terms “2-2-3” or “2-2-5-5” which are shorthand for common 50-50 joint physical custody arrangements. You want short visits with frequent transitions for the youngest kids, so they are not away from either parent for too long. In a seven day week, 2-2-3 means two days with mom, two days with dad, and three days with mom. Next week, the roles reverse so that dad has two, mom two, and dad three. This schedule doesn’t work unless you live nearby one another.
For older kids with 50-50 joint custody, you can do 2-2-5-5, which splits up fourteen days into two with mom, two with dad, five with mom, five with dad, and then repeats. This schedule cuts down on the transitions and allows for some longer periods together.
Again, the above schedules apply only to 50/50 joint physical custody arrangements when the parties live nearby. It is difficult to say whether the trend is shifting to 50/50 shared time for infants or not. You will need to discuss this issue with your attorney, who will help you identify all the factors and point you to a custody solution that is legally realistic in your jurisdiction and best for your child.
If you are reading this and realizing that you are unlikely to have 50-50 joint physical custody, do not despair. You will still have overnight, unsupervised visits with your child, it just won’t be as frequently as half the days of the year. You are no less of a parent than your counterpart, and you are probably doing what’s best for your child.
Parents who are hoping or asking for 50-50 joint physical custody only because they want to lower their child support obligation should rethink that strategy. We will discuss financial support in another post, but suffice it to say, that is the wrong reason to push for joint physical custody.
If you find yourself in the all-to-common battle between mother asking for sole and father asking for joint physical custody of an infant, try going for a compromise. Offer joint physical custody but with a very long phase-in period whereby the infant spends more time with mom in the early years, working up to 50-50 time with both parents as she approaches school age. The only problem with that would be if one party decided to move farther away, but you could deal with that in your agreement by writing that the party who moves will forfeit some time with the child or has to do all the long-distance traveling.
Regardless of your physical custody status, both parents should be able to get joint legal custody, which gives you 50-50 decision-making authority unless you are in one of those states that treat legal and physical custody as a package deal. Legal custody refers to the legal right to make important, long-term, life-altering decisions for your child. The two prominent examples would be healthcare and educational decisions. If your child develops a serious medical condition, for example, parents with joint legal custody would have an equal say in how it is handled. The same goes for educational decisions such as which school to attend or whether the child should be held back a year.
Joint legal custody does not mean both parents can micromanage each other. The day-to-day decisions like bedtime, diet, screen time, etc., are not major legal decisions and are generally up to the parent who has the child that day to determine. However, it is advisable to get on the same page as your co-parent when possible, so your child experiences consistency.
We believe there is a clear preference for most courts to award joint legal custody rather than sole legal custody unless one parent has abandoned the child or shown some other pattern of terribly poor decision-making. This is another issue you need local expertise on, so make sure to discuss your state’s laws with your attorney. In our experience, poorly managed expectations of how the courts would rule on physical and legal custody were largely responsible for the prolonged legal battles that Jessica and I experienced.
At first, in Jessica’s custody battle, her son’s father pushed for sole physical custody, which we can only imagine was based on bad advice from his attorney/friend who was not a family lawyer. Later, he reduced his ask to joint physical custody, i.e., 50/50 time, but his lawyer still should have known that he was unlikely to get joint physical custody in a trial with an infant. Jessica knew this and was happy to give him standard visitation rights but not 50/50 time. Therefore, they battled for a year before he realized that he was asking for something unreasonable, thanks to his inexperienced attorney.
In my case, my daughter’s mother’s expectations about legal custody were unreasonable and partly responsible for our first legal battle. I conceded right away that she would have sole physical custody given our long-distance, but I was not willing to give up my parental decision-making rights. I insisted on joint legal custody, and it was a deal-breaker for me. My attorney made it clear to me I should hold firm on joint legal custody because I was likely to get it in a trial (in Maryland), and we knew that the opposing attorney was advising their client the same thing.
Review the definitions below
Make sure you understand the differences between these types of custody before you sit down with your attorney to discuss expectations, given your circumstances, and the state laws that apply to your case. Websites on our “Useful Links” page, such as www.maritallaws.com/laws/custody can help you figure out what is typical in your state, but you will need to discuss the details with your attorney.
Sole Physical Custody – The child resides with one parent most of the time, and the other parent has regular visitation rights. With infants, the courts were historically more likely to award mothers sole physical custody and give the father regular and frequent visitation rights, although there may be a trend towards joint physical custody in recent years.
Joint Physical Custody – The child spends approximately equal time residing with both parents. This works only when the homes are near each other geographically. It is typical in divorce cases with older children but probably becoming the default in most cases with younger children, too. Most courts want both parents to be equally involved whenever possible.
Sole Legal Custody – One parent, the one with sole physical custody, has all the decision-making rights concerning major life-altering decisions for the child, such as healthcare and education. The parent with visiting rights can make minor day-to-day decisions independently, but they have no legal authority to make life-altering, long term decisions for the child. This arrangement is unusual unless you are in a state where they lump legal and physical custody together or unless one parent has a history of abandonment or is somehow shown to be unfit to make decisions.
Joint Legal Custody – Both parents have equal legal decision-making rights concerning major, life-altering decisions such as healthcare and educational decisions. The courts want the child to benefit from both parents’ input and, therefore, typically award joint legal custody unless there is a strong reason to limit one parent’s authority or unless you are in one of those package deal states that lump legal and physical custody together. I have joint legal custody of my daughter, as does Jessica’s co-parent, even though we are the visiting parents.
-Jessica & Jim
Disclaimer
Jim and Jessica Braz are not lawyers. While they have real-life experience in the issues discussed here, they do not give legal advice on this website. Furthermore, child custody laws, child support calculations, and family law, in general, vary from state to state. Be sure to consult an attorney in the appropriate state for your custody litigation. Jim and Jessica Braz are not doctors. While they have real-life experience in the issues discussed here, they do not give medical advice on this website. Be sure to consult your doctor on your specific medical situation. Jim and Jessica Braz are not licensed therapists, mediators, or counselors. While they have real-life experience in the issues discussed here, you should consult licensed professionals as needed. The advice given on this website does not hold Jim and Jessica Braz legally liable for any adverse outcomes you may have from following their advice.
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