What does it mean to "have custody"?

“Custody” is one of those words that is highly emotionally charged. You hear from your friends that he “won” custody, or she “lost” custody. What does “custody” really mean?

There two basic forms of legal custody. Legal custody doesn’t mean where the kids spend the night or their time, it means who has the right to make certain legal decisions for the children. If you have sole legal custody, then you make the major medical decisions for the children, whether they have surgery, or take a certain medication, or what doctor they go to. You also make major educational decisions for the children, such as which school they attend, and what programs at school they are enrolled in. If you do not have legal custody, this does not mean that you are not involved with the daily decisions, such as caring for your children when they are sick, and attending their school functions with them. You still make the smaller decisions that come up every day.

If you do have legal custody, it doesn’t mean you get to make all of the decisions. For example, you want the kids in bed by 8 pm, and your ex doesn’t have the kids go to bed until 9:30 pm. It certainly makes a difference on your parenting time, because the kids are tired in school the next day, and very cranky when they come home that night. That isn’t a decision that you are able to make for the other parent. You may be able to agree on shared rules, but you cannot control what happens at the other parent’s house, unless it is a serious safety issue.

Neither parent can schedule events for the children on the other parent’s time and expect the other parent to be forced to take the child to the event. For example, if you sign up your child for soccer, and practices are on Mondays, Wednesdays and games every Saturday, but your ex-spouse has the kids on Wednesdays and alternating weekends, there will be a problem if you aren’t in agreement. If your ex-spouse doesn’t want to take the kids to soccer, your child will be missing half of the games and half of the practices, even though you have the legal authority to sign up the child for soccer.

You can also have joint legal custody, which means that both parents have the right to make legal decisions for the children, taking them to doctors, and making decisions as they come up. It is assumed that parents will be able to communicate sufficiently well enough to make decisions such as which school the child should attend and be in agreement. Joint legal custody has nothing to do with where the children sleep or the parenting schedule.

Physical custody is what is most important to most parents. What is the parenting plan going to be? What is the schedule? Who is going to take the children to soccer practice? That schedule can vary greatly, and depends upon the schedules of the parents and the needs of the children. If you are a parent that travels out of town a great deal, it isn’t going to make sense to ask for week on, week off parenting time, even though that may feel “fair” to you as a parent. Similarly, if you don’t live in the same school district, and you can’t take the children to school in the morning without a 45 minute drive, it probably doesn’t make a lot of sense to have overnights in the middle of the school week.

Whether or not you have legal custody is not going to determine whether you lose time and influence with your children. The time and influence is what really makes a difference in the lives of you and your children. If you are trying to figure out whether you need to fight for custody, make sure you know what it is that you are fighting about. There may be other solutions that make more sense for you and your children.