Legal Custody vs. Physical Custody
In cases involving children, determinations regarding custody and visitation must be made by the parties, or if they cannot agree, by the court. When faced with issues related to custody, it is helpful to first understand the difference between legal custody and physical custody. Generally speaking, legal custody refers to the respective rights of parents to make major decisions regarding a child, whereas physical custody refers to the rights of parents to have in-person access to the child.
Joint Legal Custody
Determinations regarding legal custody often include an award of joint custody or sole custody. Where parents have joint legal custody, both will typically have the right to participate in making major decisions regarding their child. Notably, where the term “joint custody” is used absent a distinction between legal custody and physical custody, it is presumed that the phrase is referring to both. Indeed, as set forth in C.G.S. 46b-56a(a), joint custody is defined as “an order awarding legal custody of the minor child to both parents, providing for joint decision making by the parents and providing that physical custody shall be shared by the parents in such a way as to assure the child of continuing contact with both parents.”
Generally speaking, under a joint legal custody arrangement, parents are obligated to consult with one another regarding major decisions affecting the child. Major decisions often involve those related to the child’s health, growth and development, choice of schools, religion, course of study, travel, employment, sports and activities, and significant changes in the child’s social environment. On the other hand, the parent with physical custody of the child usually has the right to make less significant, day-to-day decisions while the child is in his or her care. This allows a parent to determine, for example, what the child will wear to school, or what the child will have for dinner, without the necessity of repeatedly consulting the other parent throughout the day.
Even in the context of a joint legal custody arrangement, the degree to which each parent has a right to participate in the decision-making process may be considerably different from one case to the next. In one case, the parents may be on completely equal footing, whereas in another case certain decisions may be allocated to one parent or the other. For example, one parent may have the right to make decisions regarding the child’s education, while the other parent may have the right to make decisions regarding the child’s medical treatment. In other cases, the parents may be required to consult with one another on major issues concerning the children, but one parent may have final say with respect to certain issues. In joint custody arrangements, both parents typically have the right to make emergency decisions on the child’s behalf without consulting with the other parent. For example, if the child is injured while in one parent’s care, that parent generally has the right to make decisions related to the child’s emergency medical treatment.
Joint Physical Custody
Most often, parents that share joint legal custody also share joint physical custody, with one parent designated as the primary custodial figure. Typically, “joint physical custody” does not mean “shared custody” or “50/50” parenting time. Rather, joint custody refers to arrangements whereby the child lives with one parent on a primary basis, subject to flexible and liberal visitation with the other parent. A classic example of a joint custody arrangement involves the child living with one parent during the week, subject to visitation with the other parent every other weekend (often overnight, beginning after school on Friday afternoon through Sunday evening), as well as one or two evening visits during the school week for dinner. In these arrangements, the non-custodial parent typically has expanded parental time during the summer months. This baseline model is becoming antiquated as parties are increasingly turning to more innovative and creative models. In fact, today it is not at all uncommon to see parents using a truly shared parenting model where each parent has equal time with the child each week or each month. By way of example, parties may agree to a week on/week off arrangement, or even a three or four-day split, balanced to minimize disruptive transitions. The appropriateness of a particular schedule varies as parenting plans are often influenced by the child’s age, the child’s school and/or activity schedule, the parents’ respective work schedules, and/or the distance between the parent’s homes. As discussed in more detail below, these, and many other, factors will ultimately be considered in formulating a parenting plan that promotes the best interests of the child.
Sole Custody
During an initial consultation, clients very often ask whether it is likely that one parent or the other will be awarded sole custody. Such a result is statistically rare. Sole custody is typically reserved for extraordinary cases in which a parent has demonstrated a clear inability to make sound decisions on the child’s behalf. For example, the non-custodial parent may have a disability impacting their judgment or decision-making ability, a drug or alcohol addiction, or may have engaged in conduct (often criminal in nature) detrimental to the child’s welfare.
As with joint custody, there are varying degrees of sole custody. Although the custodial parent in such situations typically has the ability and obligation to make all major decisions regarding the child, in most cases, the non-custodial parent is not completely excluded from the child’s life. To the contrary, except in extreme circumstances, the non-custodial parent will usually have some visitation. Because there usually exist reasons to limit the non-custodial parent’s contact with the child, however, visitation may be limited to one or two short visits per week, and depending on the circumstances, there may be a requirement that the visits be supervised, either by a trusted family member or neutral third party.
Contact Us
If you have any questions about post-divorce child custody in Connecticut, or wish to consult an attorney regarding a legal matter, please contact Joseph C. Maya and the attorneys at Maya Murphy, P.C. at (203) 221-3100 or Jmaya@mayalaw.com to arrange a free initial consultation.
