When you’re going through a divorce, it might seem like everyone has some advice to give. The problem with unequivocally believing whatever they say is that they might not have a firm handle on the legal meaning of various divorce terms. If you have children, it can benefit you to fully understand all the terms involved in custody so you know what you're requesting and how it will affect you and your children.
Sole custody is one of the trickiest phrases in divorce law because there are two types of custody – legal and physical – and the term might refer to one or both. In some states, such as Illinois and New York, it relates only to legal custody; it does not address with whom your children will live most often. This is in contrast to Indiana, where sole custody means your children live with you most of the time and you also have full legal custody. Depending on where you live, you could go to the wall fighting for full custody as part of your divorce, only to realize that what you've won is legal custody and your children will spend half or more of their time with your soon-to-be ex. With joint legal custody, you might find that your children live with you and have visitation with your ex, but the two of you must cooperate to make major decisions on their behalf.
Sole Legal Custody
If the court grants you sole legal custody as part of your divorce action, this means you're the only parent who can make major decisions on behalf of your children. Major decisions include those that are fundamental to their upbringing – like what schools they attend, what physicians they see, and whether they're actually mature enough to drive when they're old enough for a license. A court typically needs a compelling reason to award sole legal custody to one parent. For example, in Ohio, you and your spouse might be suffering through such a contentious divorce that the judge can't envision the two of you ever being able to work together for the best interests of your children, so he will grant legal custody to just one parent. Even if you're awarded sole legal custody, some states, such as Ohio, limit your decisions to those that have no significant economic effect on your ex.
Joint Legal Custody
Joint legal custody means that you and your spouse must cooperate and work together to raise your children after your divorce is final. You'll consult each other on issues of health, medical care, education, religion and important events in your child's life. If you don’t agree on a major decision, depending on your state's laws and your particular custody agreement, you may have to go back to court to break the impasse. In some states, such as Massachusetts, you and your spouse have joint legal custody by default after you file for divorce; this lasts until an order or decree is issued that states otherwise.
Physical custody is separate from legal custody. It refers to the parent with whom your children live the majority of the time. Different states may use different names for this type of custody. For example, in Illinois, it's called residential custody. In New Jersey, one spouse is the parent of primary residence and the other is the parent of alternate residence. Unless you have joint or shared physical custody rights, your children will spend most of their time with the residential or primary parent and have visitation with the other – regardless of the legal custody arrangement.
- State of Illinois Circuit Court of Cook County: Child Custody Information
- The 188th General Court of the Commonwealth of Massachusetts: General Laws
- Anne Catherine Harvey: Sole Legal Custody
- New York Court Help: Frequently Asked Questions/Child Custody and Visitation
- Ruppert & Schaefer: "Joint" and "Sole" Custody Terms
- The Law Office of Carl A. Taylor III: New Jersey Parenting Time
- Jupiterimages, Creatas Images/Creatas/Getty Images