When a couple with children decides to terminate their marriage, the question of child custody is often one of the biggest issues to resolve.
In some cases, it may be best for the child to have one parent as the main, consistent caregiver. This is referred to as primary custody (or primary physical custody), meaning the child resides with the primary custodial parent most of the time. However, the role of the primary custodial parent depends on a range of other factors related to custody.
In this article, we’ll take a look at what primary custody is, how it differs in the cases of sole and joint custody arrangements and how to obtain it if it’s appropriate for your case.
What is primary custody?
The primary custodial parent is the parent responsible for addressing most, if not all, of the child’s needs. The child spends most of their time living with that parent.
However, the primary custodial parent’s ability to exclusively make decisions regarding the child depends on several other factors. For example, it’s possible for a parent to have primary physical custody while sharing physical and legal custody with the other parent.
Physical primary custody
When one parent is granted physical primary custody, the child lives most or all of the time with them. It’s possible for one parent to have primary physical custody in both sole and joint custody arrangements.
Primary physical custody with sole custody
Sole physical custody means that the child only lives with one parent, referred to as the sole physical custodian. In most cases, the noncustodial parent receives visitation rights and is able to schedule regular meetings with the child.
In rare instances, the noncustodial parent may be barred from visitations, even supervised, when it’s believed that continuing contact would be physically or emotionally harmful to the child (for example, if there’s a history of sexual abuse or domestic violence). In that case, the sole custodian, by default, has physical primary custody of the child, since the child resides with that parent all the time.
Primary custody while sharing physical custody
Many parents with a joint custody arrangement equally split their time with the child. However, depending on the circumstances and the child’s best interests, this may not always be possible or appropriate.
In such cases, the parents (or a judge) may decide that one parent should have the child for a majority of the time to preserve a regular routine, allowing them to keep up with schoolwork or extracurricular activities, or to avoid the challenges of a complex exchange, among other reasons. In these cases, the child may spend every (or every other) weekend with the other parent, as well as holidays and other special events.
Primary custody with sole legal custody
Legal custody refers to a parent’s ability to make important decisions regarding their child’s health, welfare and future. This can include questions regarding:
- School or child care
- Religious activities or institutions
- Psychiatric, psychological or other mental health needs
- Medical and dental needs (except in emergencies)
- Sports, summer camps, vacations or extracurricular activities
When a parent with primary physical custody also has sole legal custody, they may have the right to make decisions about their child’s life on their own, without permission from or consultation with the noncustodial parent, depending on the language in their court order.
Primary custody with shared legal custody
When a parent with primary physical custody shares legal custody with the other parent, both parents have the right to be involved in important matters and share decision-making power.
There may be instances where the parents experience significant conflict and struggle when trying to make decisions together. In such a case, a judge may grant both parents joint legal custody but distinguish one parent as a tie-breaker in the event they can’t agree, or they may order that some other method be used for resolving disagreements.
What is joint custody?
Joint custody is an arrangement where both parents share responsibility for the raising and care of their child. These arrangements are more often favored by the courts and usually granted for the purpose of maintaining a close relationship with each parent. Parents can share the time the child physically lives with them (and the responsibilities that accompany that), important decision-making for their child’s life or both.
There are many ways in which parents can have joint custody. While some parents may follow a 50/50 parenting plan in which the child spends nearly equal time with both parents, this isn’t always a given. The arrangement that parents, or the court, finalize depends on the child’s specific needs and how each parent can best meet them.
Physical joint custody
In arrangements of joint physical custody, the child spends their time in some kind of split between both parents’ homes. Although in most cases both parents are given at least visitation rights for maintaining a relationship with their child, joint physical custody usually implies that both parents receive a more substantial amount of parenting time.
There are many different ways parents can decide to share joint physical custody. Some of the more common 50/50 arrangements include exchanging the child every week or every two days with alternating weekends. Parents may also opt to follow a 60/40, 70/30 or 80/20 time division.
Legal joint custody
Sharing joint legal custody means that both parents have the right to be involved in making major decisions about their child’s life. If the court hasn’t distinguished one parent as a tiebreaker or primary decision maker, then the parents need to be in good communication with each other to guide the upbringing and care of their child.
Before any actions can be taken, the parents need to reach an agreement or risk violating the custody orders. A parent could also be found in contempt of court or face another court sanction for interfering with the other parent’s involvement in the decision-making process.
Receiving joint legal custody doesn’t guarantee also receiving joint physical custody. Sometimes both parents may share responsibility for important decision-making, but the child lives primarily with one parent.
What are the benefits of primary physical custody?
Although the decision about whether one parent should receive primary physical custody is largely based on the child’s best interests, there are numerous benefits for the parent who has it.
- More time with the child(ren). It may seem obvious, but the parent who receives primary physical custody of their child will naturally get to have much more parenting time than the noncustodial parent does. Physical parenting time is a valuable commodity, as parents undergoing a divorce usually wish to preserve as much time with their child as possible. Additionally, the more time a parent spends with their child as they grow older, the more they’ll influence and support them in young adulthood. Of course, more parenting time means a greater amount of responsibility, but parents who obtain primary custody are likely willing to make that exchange.
- Consistency for the child(ren). Having primary custody means a more consistent and stable routine and life for the child. Sometimes children have trouble adjusting to a more equal joint custody arrangement and feel strained by the constant exchanges between parents. In other cases, the parents are unable to maintain communication without conflict to coordinate a complex joint custody arrangement, which quickly comes back to the child. Primary physical custody may not necessarily be the best solution for all cases, but it offers a level of consistency and stability for the child that can support them in adjusting to the divorce. While they do so, they can still spend time with both parents through regular visitation.
- Reliable child support. The primary custodial parent usually receives consistent child support payments as compensation for covering a greater percentage of the child’s daily expenses. At the same time, primary custody arrangements can lower the overall parenting costs for divorced families since most of the child’s life—and belongings—is centered around one parent.
- Child tax benefits. In general, parents are entitled to a child tax credit for their annual return, which can be a significant amount per month per child. When a couple divorces and doesn’t share fully equal parenting time, the court usually awards this tax credit to the primary custodial parent. This can result in big savings come tax time and even payments from the IRS.
How does child custody affect child support?
Although divorce means big changes for the whole family, child support is the way that both parents financially meet their child’s needs without impacting their overall quality of life. Each state determines child support payments differently, so check your local guidelines or consult with a lawyer to understand what applies to your case.
In general, two of the biggest factors in the calculation of child support are each parent’s income and the amount of time they spend with the child.
One method for calculating child support payments is the Income Shares Model. This determines how much monthly support the child is entitled to receive according to the parent’s combined incomes, and then divides that total amount based on each parent’s respective earnings. The parent with the higher income is usually expected to pay a greater percentage than the parent with the lower income.
However, the amount of time each parent spends with the child also plays a significant role in who pays child support. Most of the time, the parent who spends the majority of time with the child receives support from the other parent.
The total amount of that child support is directly related to the percentage of time each parent has the child. The more equal time each parent spends with the child, the smaller the support compensation will be to the primary custodial parent, if at all. (It’s assumed both parents already contribute to their child’s expenses while they’re under their physical care.)
Finally, child support is based on whether parenting time is spent during the day or includes overnights. A parent who has multiple weekly daytime visits with their child and an overnight once every other weekend will have larger child support payments than a parent who has two or three overnights every week. This is because there are greater expenses to cover with overnights (food, rent, place to sleep, etc.) than in non-residential daytime visits.
What’s required to get primary custody?
Since the courts tend to favor joint custody arrangements to support a substantial relationship with both parents, parents who seek primary custody of their child must come prepared to support their case. You’ll need to make arguments about, and provide evidence for, why it’s in your child’s best interests that you become their primary caregiver.
You’ll also need to show why the other parent is unable, unfit or unwilling to fulfill their parenting responsibilities. This may involve introducing evidence of substance abuse, abandonment or neglect on the other parent’s part. It also can include dealing with severe illness or absence due to work, military duties or incarceration. As before, the conditions that qualify a parent as unfit for guardianship differ from state to state.
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What factors does a court consider when awarding primary physical custody?
Some parents work out primary custody arrangements on their own, but often the courts need to intervene. The factors that family courts examine in order to determine if primary custody is necessary and divide parenting time differ in each state, but may include specific parenting questions such as the following:
- Who takes the child to school?
- Who dresses the child?
- Who potty trains the child?
- Who disciplines the child?
- Who takes the child to doctor visits?
- Who stays home when the child is sick or has a vacation day?
- Who fixes the child’s meals?
- Who takes the child to religious activities?
- Who helps the child with their homework?
- Who arranges daycare or babysitters?
Individually, no one factor carries more weight than the other. Instead, the courts use such questions to determine which parent plays a majority role in the day-to-day routine and needs of the child. Primary custody is based on the assumption that it would be disruptive to suddenly separate the child from the parent with whom they’re most used to completing their regular pre-divorce life.
In addition to the specifics of each parent’s involvement, the courts look at the bigger picture of the child’s life and the family situation. These factors might include:
- The nature of the relationship between the child and each parent
- The child’s age and health
- The importance of continuity and consistency in the child’s life
- The parents’ mental and physical health
- The parent’s financial situation
- Any history of domestic violence or abuse by either parent
- Reasonable preferences of the child (after a certain age)
- Any evidence of harmful or risky behaviors from either parent, including substance abuse or criminal activity
Can you change who gets primary custody?
All custody court orders can be changed once they’ve been approved, but the process for doing so can be complicated and lengthy, especially if the parents don’t agree. States differ on when, and under what circumstances, parents may file such a motion. Only the court can approve and finalize any modifications to the original agreement.
However, it’s possible to file a petition for a change in custody arrangements. To do this, the petitioning parent needs to show there’s been a significant change in circumstances that justifies such a modification.
One big change in circumstances is if either parent intends to move or relocate, especially if it affects their ability to maintain a meaningful relationship with the child. For example, if the primary custodial parent wants to move together with the child and the distance between parents will increase, the noncustodial parent may request primary custody, a change to their visitation rights or that the relocation of the child be denied.
Do I need a custodial rights lawyer?
You don’t need a custodial rights lawyer to finalize a custody plan. However, whether you can do this without professional help largely depends on your ability to get along with the other parent. Some people are able to complete this process themselves, but many times, the question of custody comes with a fight. In addition, having a family law attorney draft a detailed and comprehensive parenting plan may help avoid future conflicts or uncertainties.
If you go to trial, working with a lawyer can help you make your case for deserving parental rights. The costs of hiring a lawyer can be steep and unexpected for some people but can be worth it for the accuracy and care with which they’ll handle your case.
A custodial rights lawyer can help you in the following ways:
- Filing complex paperwork to the right people at the right time
- Providing insights on the judge overseeing your case
- Developing your strategy for your courtroom presence and behavior
- Gathering personal character references and preparing witnesses for court
- Preparing you for personal testimony and the judge’s questions
- Organizing evidence and determining what’s admissible in court
- Answering your questions and providing support through this often complex process
Keep in mind that if your case involves one parent moving away, domestic violence or other complicating and sensitive factors, it can be helpful to work with a lawyer. They can help you seek any necessary protective orders for you and your children, and guide you through an otherwise intricate process.