What is Sole Custody?

By Kimberly Lauer, Esquire

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Custody can refer to either legal custody (decision-making authority) or physical custody (where the child resides). Many people start off a custody battle with wanting sole custody. And really, who wouldn’t want to be the one to make all the decisions? But first, ask yourself if sole custody would be in the best interest of your child. Custody is not just about where your child lives, but also includes very important decisions like what school your child should attend or your child’s moral or religious upbringing.

Legal Custody

Legal custody consists of the major decisions involving where the child goes to school, what religion a child will be raised with, and who the child’s doctors will be. The day-to-day decisions of food, clothing, and daily activities are often dependent on the physical custody schedule.

Sole v. Joint Legal custody primarily depends on how well two parents can communicate. Understandably, your communications may have devolved during divorce. But that does not necessarily mean that you cannot communicate about the major decisions in the child’s life.

Sole legal custody, or authority to make decisions without involvement from the other parent, is generally reserved for circumstances where there has been domestic violence or the parties simply cannot communicate. Sometimes a Parent Coordinator may help parties communicate to reach shared decisions.

There may be an alternative solution. In recognition of the importance for two parents to be involved in deciding what is best for their child, particularly when it comes to school and religious upbringing, there may be alternatives to consider before requesting sole custody.

Mediation

Parties may agree to attend mediation in the event they are unable to agree upon a joint decision regarding a major issue in the child’s life (such as where the child should attend high school). A Mediator is a third party professional who can meet with the parties, listen to their perspectives in the dispute, and help them reach a joint decision on a discrete issue. In this circumstance, the parties can generally communicate with one another or do not have major disputes about the child’s health or moral upbringing. However, if parents reside in different school districts, this may be an issue that only arises once or twice as the child grows up. For such cases, a Mediator may assist in helping the parties reach a joint decision.

Parenting Coordinator

Parents who can communicate with one another on a day-to-day basis, but may have difficulty making a joint decision (such as health care issues or treatment for a developmental disorder) might benefit from having a third party assist in talking through their options to reach a joint decision. A Parenting Coordinator is a professional third party who focuses on the child’s best interest and helps parents to communicate with each other in order to reach a joint decision. When parties have ongoing issues or need assistance with a continuing dispute, A Parent Coordinator can become familiar with the family’s circumstances and be called on to assist as needed. For parents who can communicate, but simply do not see eye-to-eye, this can be a useful resource to reach a joint decision for ongoing issues.

Tie-Breaking Authority

In certain circumstances, the Court may grant one parent tie-breaking authority after good-faith efforts to reach a joint decision have failed. This authority should not be taken lightly nor used against the other parent to essentially exert sole decision-making authority. Sometimes the court will grant one parent tie-breaking authority for some decisions (i.e., health decisions) and the other parent tie-breaking authority for other decisions (i.e., education).

Physical Custody

The schedule that works best for your family will depend on your work schedule, the other parent’s schedule, and the child’s school and activity schedule. Custody schedules can be as different and unique as each family is different and unique. Some families who live close to one another can have a 50/50 schedule, while others may have a Monday – Friday schedule with one parent and alternate weekends with the other parent, or if parents live far apart, one parent may have the child during the school year and the other parent may have the kids for the summer. A regular schedule is dependent on each parent’s location and availability, as well as the family support available to each parent.

What is the Court looking for?

Courts generally favor shared custody schedules, because it is important for both parents to be involved in a child’s life. However, there are circumstances, particularly in severe cases of abuse or neglect, where one parent’s time with their child may be limited. The key considerations for the court will be: What happened? How was the child harmed? What is the risk that the child will be harmed in the future? What resources are available to the abusing parent to limit the risk of future harm?

When considering the custody schedule that would work best for your family, the Court has provided a worksheet to help you create your parenting plan. The Court has created resources, including videos to help you draft your plan at https://www.mdcourts.gov/family/parentingplans. You will also need to file a joint statement detailing your parenting plan with the court. The form is available at https://mdcourts.gov/sites/default/files/court-forms/ccdr110.pdf. If you still have questions about what parenting plan would be best for your unique circumstances, you may want to contact a family lawyer to discuss your different options.