A Bird’s Eye View of Child Custody

In a perfect world, people would not get divorced and families would not split up. Since we don’t live in a perfect world, couples split up and families break up. Divorcing couples with children have a very important consideration – child custody.

When we talk about custody of minor children, it is important that we do not lose track of each parent’s fundamental “liberty interest” in the care, custody and management of their children. Put another way, a parent has a “fundamental right, protected by the Constitution, to sustain his relationship with his child[ren].” State in re Walter B., 577 P.2d 199, 124 (Utah 1978)

Of course, the most common context of discussing custody of minor children is in the divorce context. And, in that case, as stated above, each parent has a fundamental “liberty interest” in their children.

What’s my point?

It is a common misconception that when a couple with children divorce, the children will automatically be given to the mother, with father having “minimum” parent time (every other weekend and one night per week). It’s important to recognize the word “minimum” in that sentence. Do not lose track of the fact that father has just as much interest in the care, custody and management of the children as mother does.

The trick is balancing how much parent-time and custody each parent will get. Obviously, when couples split up they go separate ways and children can’t be in two places at once. Each parent has a right to have custody in some form or other.

Legal Custody vs Physical Custody

Two different forms of child custody exist. One is legal custody, which means being able to make decisions about the children, i.e. where to go to school, church, medical decisions and such. The other is physical custody. Who is going to be the primary caretaker. Both of these classifications of custody also have two varieties. One is joint custody and the other is sole custody. There can be various combinations of these forms of custody. For instance, a parent can share “joint custody” with the other parent and have sole “physical custody”. This means that both parents are involved in the decision-making of the children’s lives but one is the primary caretaker and that’s who the children live with.

Not every parent is situated for joint legal and joint physical custody. Each case is fact specific. But, as every parent has a right to some form of custody, neither parent can take this right lightly or discount it. A good family lawyer can help navigate through the treacherous waters of divorce and custody considerations.