By Divorce.com staff
Updated Dec 26, 2022
You have to make a lot of important decisions during a divorce, but the most important decision you make will likely involve custody of a child.
Divorce affects your children just as much as it affects you. It’s important to make decisions that prioritize their stability and well-being. The type of custody you choose will impact the way they live their lives, and you need to be sure you’re making the right choice.
Here’s what you need to know about sole custody and when it’s appropriate to use sole custody.
There Are Two Forms of Custody: Legal and Physical
The term child custody is usually used to refer to physical custody, but there are two forms of custody. During your divorce case, you’ll need to make child custody arrangements for both physical and legal custody.
What Is Legal Custody?
Legal custody refers to decision-making rights for your child’s life. This refers to decisions affecting your child’s medical care or mental health care. Educational decisions and extracurricular activities that require parental consent are a legal custody matter. Most parents have joint legal custody of their children.
What Is Physical Custody?
Physical custody refers to where the child lives. The law describes physical custody as where a child stays overnight rather than who spends the most time caring for a child during the day. Many families choose joint physical custody for their children.
Some Parents Do Not Have Both Types of Custody
The parent who has physical custody will always have legal custody because the parent the child stays with needs to be legally empowered to make important decisions for the child’s life.
The parent who does not have physical custody may still have legal custody, which means that the parent with physical custody will need to speak with the other parent before making important decisions.
Some parents have neither legal custody nor physical custody. The parent with physical and legal custody doesn’t need that parent’s consent to make decisions. Parents without custody are sometimes given court-ordered visitation with their children, as long as they aren’t considered a threat to the child’s safety.
There Are Three Ways Custody Can Be Awarded: Sole, Joint, and Primary
There are three main custody arrangements. They can differ between types of custody, like physical or legal custody. Here’s what you should know about how each arrangement works.
What Is Joint Custody?
Joint custody is almost always the preferred outcome in family court. It allows parents nearly equal parenting time with their children. Parents will submit a parenting plan to the court that shows how they’d like to divide their time.
In cases of amicable divorce, there’s usually a little bit of wiggle room where both parents can work together to support each other.
Joint custody is a great choice when both parents have an equal interest in raising their children. Children in joint custody situations are often better adjusted than children who live exclusively with one parent, although there are always exceptions.
What Is Primary Custody?
Primary custody refers to a situation where the child lives with one parent most of the time. This is the classic “weekday and weekend” parent situation, but it doesn’t always need to work out that way.
Primary custody technically means that one parent has the child for notably more than half the time. It could be a 60/40 custody split. Parents have the opportunity to decide how they’d like to divide child custody time within their parenting plan.
What Is Sole Custody?
Sole physical custody means that a child will only sleep at one parent’s house. The other parent may not be entitled to visit the child regularly. If they are, the court may create a visitation schedule, and a court appointment supervisor may need to be present for those visits.
Sole legal custody means that every important decision that impacts a child’s life will be made by one parent.
Some states use the term full custody instead of sole custody, but the terms have the same meaning in practice.
When Should You File for Sole Legal Custody of a Child?
Sole custody is rarely an ideal arrangement, except in extenuating circumstances. It means that the child will be raised without the involvement of one parent, and unless it’s truly in the child’s best interest, it’s unwise to damage parental bonds. There are a few scenarios where sole custody will always be the best option.
Keep in mind that sole custody doesn’t necessarily affect child support. In many cases, parents with sole custody can and do receive child support from the other parent.
In Cases of Domestic Violence
If your spouse has a history of being violent, abusive, or neglectful to the children, it isn’t safe for them to have custody of the child. If you have documentation to support abuse allegations (like police reports, photos, or text messages), you can present the documentation in family court at the time of your divorce.
If the court finds that your spouse is a dangerous person for your children to be around, you’ll likely be granted sole custody.
Depending on the details of the situation, the court may still allow your spouse to visit with your child in a controlled environment. These meetings usually take place under the supervision of a person that the court trusts to make sure the situation stays safe.
When One Parent Is Dealing With Substance Abuse
Problematic alcohol use and substance abuse issues can damage families. Parents can’t properly care for their children while they’re under the influence. It isn’t safe for them to drive with the child or supervise their child in potentially dangerous situations, like swimming or jumping on a trampoline.
People are often volatile when they’re under the influence. They may display behavior in front of their children. They’re also typically unstable. People with substance abuse issues often have trouble managing their finances, making it difficult for them to meet their child’s needs. They may bring unsafe people around your children or take children into unsafe environments.
If your significant other is dealing with substance abuse issues or other mental health issues, it’s a safer idea to file for sole custody. You can always change your custody arrangement later if the child’s other parent turns their situation around.
When One Parent Is Mostly Unreliable
Custody arrangements sometimes call for greater involvement from both parents, but one parent fails to meet their responsibilities. Their communication is poor, they don’t show up when they’re supposed to, or they don’t take proper care of the children when they have them.
If the situation becomes a problem, you can petition the court for sole custody. Obtaining sole custody can help prevent disruptions to your child’s life.
When One Parent Is Moving Far Away
Something like a family emergency or a job transfer can cause one parent to move far away. In cases where parents will be separated from their children by a significant distance, it may be better for one parent to have sole custody.
The logistics (and expenses) of attempting to move a child back and forth between states or countries for regular visits can be stressful and disruptive.
The parent who moved away can still visit with the child as long as the court is aware of the situation and both parents agree to the visits. Arrangements can be made for the child to stay with their faraway parent for a full month over the summer or for a full week during a school holiday, but the other parent will still be considered the child’s full guardian.
When One Parent Is Missing or Incarcerated
In the case of abandonment, one person can file for divorce without the other person present. The court will require that one spouse makes a reasonable attempt to contact or locate the other spouse. If they don’t show up, the spouse who filed for divorce will receive a default judgment.
A default judgment is when someone gets everything they’ve asked for in a divorce because the other party didn’t show up to ask for something else.
If your spouse is missing or incarcerated, they can’t take custody of your child. You can ask for sole custody of your child in your divorce, and you’ll be granted sole custody by default. This custody order is especially useful in the event that the missing parent resurfaces and demands time with their child.
They won’t legally be allowed to walk right back in and take their child. They’ll first need to prove to the court that they deserve some type of custody.
Are You Ready to File the Paperwork?
Divorce is never easy; neither is the realization that you likely won’t be able to be with your child every day after your split is finalized. While divorce isn’t an ideal outcome, services like mediation can make it easier to make decisions regarding custody, parental rights, and other large issues amicably.
Of course, some cases will require litigation, and there are likely independent local attorneys and law firms with experience in family law who can provide legal advice and help you explore your options if the time comes. Regardless, rest assured that every decision made by your family law attorney will be in your child’s best interests.