Nov 9, 2020
How do legal custody rights come about? How does it differ from physical custody? What is joint or sole custody? What is shared parenting? These are some of the most common questions that people ask a family lawyer.
Custody is a legal right or responsibility that parents have over their children. Every married couple has legal rights of the children born of their marriage. Every single mother also has legal rights of her children. A single father can get custody rights over their child after paternity is established either by signing an Affidavit of Paternity at the hospital, or by Court Order. Legal rights include the right to make decisions for a child, have physical possession of the child, and the responsibility to care for the child. However, when couples separate, the issue of custody becomes more complicated.
Parents quickly learn that without a court order granting “custody” of the children, they have no “control” over the decisions made by the other parent regarding their child. To get a custody order, a couple must either file for divorce, or if not married, must file a custody matter with the Court. Kentucky law presumes that both parents should be awarded joint legal and physical custody, typically referred to as “shared parenting”, but this is not guaranteed.
A typical shared parenting arrangement gives equal parenting time to both parties and equal decision-making rights. For either parent to be awarded anything less than “shared parenting”, it must be proven that they are unfit to have custody, unavailable to parent the child, or meet several other possible factors set forth by statute that could minimize their time or rights.
It is possible to be awarded joint custody but have less than equal parenting time. If a parent travels for a living, or the parents live too far away from each other for shared parenting time to be a viable option, the Court will often grant the parties joint decision-making rights while setting a parenting schedule that takes the parties circumstances into consideration.
So if both parents are equal, why do they need a custody order? Often after parents separate, they play tug of war with the children, or disagree on how to parent their children. A custody order sets forth rules such as what happens when the child needs medical care, or what school the child will attend, etc. It usually provides significant detail about how decisions will be made, how the child will be cared for, and how the child will be financially supported. If a parent violates the order, the Court has jurisdiction over the parent to penalize them for such.
Clients often come to me asking to obtain “sole custody”. They want to be the sole decision-maker for the child. This obviously means that the other parent would have no decision-making rights. Twenty years ago, sole custody was awarded much more frequently than it is today. The Court’s philosophy is that children benefit from parents in different ways, and at different stages of their lives. A child needs continued involvement from both parents in most cases. Not all, but most.
It shouldn’t be easy to get rid of the other parent’s rights. After a break-up, it’s understandable that you may not like the other parent, but custody isn’t about the parents. It’s about the child’s best interests.
