CUSTODY AWARDS — WHAT ARE THE CHOICES?

by Richard A. Marcus, Esq.

Before we talk about the types of awards, it is important to understand the legal framework behind them. The child’s best interest is the paramount consideration for any custody award. In order to fashion custody awards consistent with a child’s best interest, courts must consider, and effectuate, two critical public policies. The court's "primary concern" is to assure the child's health, safety and welfare.

The second policy is "to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.” The two policies are on equal footing if there is no threat of child endangerment. But where the policies conflict(for example is a domestic violence case) a custody or visitation order "shall be made in a manner" that ensures the child's health, safety and welfare and the safety of all family members.

Now to the types of awards. There are two components to each award of custody. One is physical custody and the other is legal custody. A parent obtaining sole legal and physical custody gives one parent primary physical control of the child, with the right to make decisions regarding the child's residence, health, education and welfare. The other parent, denominated the “noncustodial parent” has secondary visitation rights as ordered by the court. The noncustodial parent also has the right to seek and obtain a custody modification based on a proper showing of changed circumstances.

In other cases, a parent may be granted exclusive physical custody without exclusive legal custody. This means the child resides with and is supervised by one parent, subject to the other parent's visitation rights; but the custodial parent does not have sole decision-making power regarding other matters affecting the child.

And, in other cases, a parent may be awarded the exclusive right and responsibility to make decisions relating to the child's health, education and welfare (legal custody), but unless exclusive physical custody is also granted, that parent does not have sole control over the child's residence and supervision.

Under a "pure" joint custody plan, neither parent has sole physical or legal custody; both have authority to control and supervise the child, and the child's physical presence is shared. The type of custody awarded can be very important, especially in “move away” cases.