In two types of divorce, be it contested or uncontested, a dispute over the custody of the child is inevitable. The decision on after divorce child custody can be made either through legal procedures in court or through family decision.
It is when the parents and the family cannot undertake a proper decision, the court steps in and judging by a few factors, gives a deciding outcome on who will be responsible for the care, control, and maintenance of the child.
Determining Factors of Child Custody
- Relationship with the parents
- Capabilities of the parents
- Emotional, mental, physical and financial situation of the parents
- Support system available, i.e., relationship with the relatives
- Relationship with the siblings
- Finally, the welfare and wish of the child
The court judges all these factors and gives heavyweight to the wish of the child if the child is old enough to understand the situation. Generally, the siblings are not separated. The court doesn’t judge the past behaviors of the parents unless there are extreme situations where the parents’ ability to childcare was at a question.
After Divorce Child Custody
Two procedures make the custody decision in the post-divorce situation. Firstly, the involved party can decide with proper discussion and agreement within themselves in the presence of the whole family. Or, the issue can go to court.
Without Court
Having a family lawyer or divorce lawyer can help decide on the custody of the child within the family without going to the court. The family lawyer can help understand the legal procedures and guide in determining the care of the child.
Furthermore, counseling with a therapist can also help parents decide on the custody of the child. Therapy sessions can bring about calmness and sanity in separation and make the parents realize what is best for their child.
With Court
Of course, if the custody of the child cannot be decided with mutual understanding, the safest option is to go to the court. Even though it seems that going to court is a safe and secure option, in reality, it takes a lot of physical, mental, and financial stress to complete the court procedures and come on a decision.
Types of Child Custody
Two basic types of child custody are physical custody and legal custody.
Physical Custody
The most common practice, where the court decides that one of the parents will be solely responsible for the care of the child while the child physically lives with that parent. The parent has full responsibility and authority over the child by this law. This means that in almost every case, the child will live with the parent until maturity or adulthood.
Legal Custody
Legal custody, as the name suggests, both the parents have deciding authority on different situations of the child’s life. Both the parent can decide on the education, health care, marriage, religion, food and play habit, etc. factors of the child’s life.
In this scenario, the child might be living with the other parent, but the parent has full right to voice his/her decision in the mentioned matters.
Subtypes of Physical and Legal Custody
Now, as it’s already mentioned, a decision might come in any one of the custody type or maybe both together or none. In this case, we’ll look at some of the subsets of the physical and legal custody where the court decides on different types of child custody accordingly.
Full Custody
In this type of custody, the court grants custody to one parent solely. This means that the parent has both physical and legal custody of the child. That parent individually decides about the child’s education, health care, religion, and so on. Another parent might have a right on the child only with the consent of the lawful parent.
Joint Custody
While full custody gives 100% responsibility over the child, the joint custody works as a 50-50 right over the child. This is also called Joint Legal Custody. The court accepts this legality only if the parents can work together with mutual understanding, respect, and co-operation for the betterment of the child. There can be no dispute and fights that can hamper the physique and mentality of the child.
Usually, the court decides on a scheduled visit for each parent. For example, one parent can visit the child and the other parent’s house only with the permission of the court. Both the parents here decide on the education, religion, and other aspects of the child’s life, but the child physically stays with only one of the parents.
Shared Custody
This is an example of the Joint Physical Custody, where both the parents get to physically have the child with them in an equal amount of days each week. The child gets to stay with both the parents individually, which is considered mentally soothing for the upbringing of the child. The child also gets the love and affection of both the parents despite the separation.
However, shared custody is only permitted under some specific considerations. Both the parent must have a good relationship with the child if one of the parents is sick, away or maybe financially not up to the mark, and the court grants a shared custody to minimize pressure on one single parent. This 50-50 share of the physical care is more practical and accepted than other types of custody.
Split Custody
Split custody happens when there is more than one child involved in the separation. Here, each parent must have physical custody of at least one child, while both parents can have legal custody over both the child.
It means that siblings would be separated, and one parent will have the physical responsibility of either of the children. Each child can either live with one single parent for the rest of his/her life or may have a rotate living arrangement. It is a less common practice as it might affect the child-parent relationship.
Parens Patriae
It is a unique scenario of Canadian law where the court and the state take responsibility for the child. This means the court has the authority and responsibility over the child to keep the child under their protection. The system in Latin language means “Parent of the Nation.”
Conclusion
After divorce, child custody plays a significant role in the law and the court. Above all, the court always takes decisions with the best interest of the children and by judging the best outcome for the child.
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