What Are the Types of Child Custody? 

If you are divorcing with minor children, or have never been married to your child’s other parent, child custody is probably on your mind. But what does it mean when we talk about child custody, and what are the types of child custody? And what is the significance of different terms related to custody?

Physical and Legal Custody

There are two types of child custody in the traditional legal context: physical and legal. Physical custody is what most people think about when they think of child custody: the parent with whom the child resides. In recent years, some states have moved away from the term “custody,” which could make the child seem like a possession that is in the hands of one parent or the other. In Maryland, for example, the terms “residential custody” or “the access schedule” or “time sharing arrangement” are often used.

Legal custody is just as important as physical custody, however. Legal custody is the authority to make major decisions that affect a child’s life: where they will go to school; what religion they will be raised in, if any; what medical care they will receive, and from whom. Day-to-day decisions, like bedtime, what to wear, and how much screen time is allowed are the province of the parent with whom the child is living on a given day.

Division of Custody Between Parents

In decades past, it was more common for one parent to have physical and legal custody of the child in a divorce. That parent was often the mother, who typically had more involvement in the child’s day-to-day care. As families have changed and roles have evolved, there has been a move toward both parents having physical and legal custody.

Physical Custody: Sole, Shared, or Joint?

In Maryland, physical custody can be either sole or joint. Sole custody does not mean that the child lives with only one parent; nor does joint custody mean that the child lives for an equal amount of time with each parent. In fact, one family might have “sole physical custody” and the child is actually on the same access schedule as another family who has “joint physical custody.” These really are just labels; the important thing is the actual access schedule.

Maryland law also uses the term “shared custody” in the context of child support. It is sometimes confused with joint custody, but really relates only to the number of overnights used in the guidelines formula. The designation has less to do with the level of involvement in the child’s life than promoting fairness in child support. (Child support in a shared physical custody situation is lower than in a sole custody situation because it takes into account the paying parent’s expenses in having the child in their home a substantial part of the time.) So in Maryland, a parent might not have the label of sole or joint physical custody, but that doesn’t mean that they don’t see their child on a regular and frequent basis.

Physical custody of a child in the District of Columbia also is sole or joint. The District of Columbia has a presumption, or legal preference, for “joint custody.” Again, joint custody does not mean equal custody. One parent is typically referred to as the “custodial parent” and the other the “non-custodial parent,” even if they have joint physical custody and both spend substantial amounts of time with the child. In the District of Columbia, a designation of “sole physical custody”may simply mean that one parent lives far away from the other so that one parent has the child the great majority of the time. It could also mean there has been domestic violence and the child is not safe in the abusive parent’s home.

Legal Custody

In both Maryland and the District of Columbia, legal custody can be sole or joint — but joint legal custody is heavily favored in both jurisdictions. As mentioned above, courts prefer for both parents to be involved in the big decisions that affect a child’s life. Joint legal custody requires parents to be able to communicate with each other to do what is best for their child. Obviously, that can be challenging, but it is usually worth it.

Having both parents deeply involved in the decisions affecting their child is so strongly valued that in the District of Columbia, there is a legal “presumption of joint custody.” This presumption is rebuttable, which means that if one parent can present evidence showing that it is not in the child’s best interests for the parents to share joint legal custody, they may be granted sole custody.

Deciding on a Custody Arrangement

Whenever possible, it is best for parents to arrive at their own agreement about physical and legal custody. For one thing, they know their family better than anyone else, and have the flexibility to design an arrangement that works for their own unique needs. Another reason it is best for parents to work out their own custody arrangement is that they are more likely to be satisfied with, and to abide by, a plan that they had a hand in creating. This is the context where avoiding the phrases that include “custody,” and instead talking about an access schedule and parenting decision-making can be helpful. If parents are having a hard time reaching agreement on their own, their attorneys can offer a range of dispute resolution options.

If parents are unable to reach agreement even with their attorneys’ support, the court will make a decision, sometimes with the input of a best interest attorney or a forensic child custody evaluation.

If you have further questions about the types of child custody in Maryland and the District of Columbia, please contact Strickler, Platnick & Hatfield to schedule a consultation.