In a divorce, everything is split, including the custody of children. Custody of the children includes legal custody and physical custody. Legal custody means the rights to make decisions affecting the children’s legal status, medical care, education, extracurricular activities, and religious instruction. Physical custody means the rights to maintain a home for the minor children and provide for the routine care of the children.
It is common for both parents to be given legal custody of minor children. Under joint legal custody, neither parent has legal custodial rights superior to those of the other parent. However, sole legal custody can be awarded to one parent.
Physical care can also be joint. Under joint physical care, neither parent has physical care rights superior to those of the other parent; both parents share parenting time, maintain homes for the children, and provide routine care for the children. Alternatively, one parent can be given primary physical care. Under primary care, one parent is solely responsible for decisions concerning the children’s routine care. Visitation rights are ordinarily given to the parent who is not the primary caretaker.
In determining physical custody, the best interests of the children are the first and governing consideration. The court’s objective when deciding which parent should have physical care is to place the children in the environment most likely to bring the children to health, both physically and mentally, and to social maturity. Factors that the court will consider includes the characteristics of the children; characteristics of each parent; the relationship between the children and the parent; the stability and wholesomeness of each proposed environment; and the effect on the children of continuing or disrupting an existing custodial status.
After custody is set in a decree, it can be difficult to change. In order to change the custody arrangement there must be a material and substantial change in circumstances that was not contemplated by the court when the decree was entered. Additionally, the physical custody will have a large effect on the amount of child support owed. Consequently, it is important to consult an attorney when determining custody.
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