Where both parents are sharing a home custody is usually not an issue.  Custody becomes an issue when two parents are no longer living together.  Typically, the issue of Custody arises in the context of a divorce.  Each parent has a right to assist in the upbring of the children.  Moreover,  each parent has an equal right to custody of the children.  A parent has a right to decide the children's religion, school, medical treatment, etc. 

The test for custody is "best interest".  The court will fill that in by substituting what is best for the child's emotional, spiratual, educational, medical needs and consider other factors as well.  What the court decides is what is needed for the child to grow up and become a healthy adult.  In short, anything that will contribute to helping the child become a healthy adult is in the child's best interest.

The court must also decide which parent is the better parent or which parent will help the child thrive best.  Where there is a custody battle everything about a parent gets examined microscopically.  A simple argument with a child can become a negative, ones level of cleanliness at home can become an issue, which parent helps the child with homework, who is the child more emotionally "bonded" (attached) with, which parent does the child look to for emotional support etc.  Therefore, one must strive to be flawless during a custody battle.

Finally, the court will decide which parent will best meet the child's emotional, educational, religious needs.  The parent that will provide the best environment for the child to "thrive" is the parent who will get custody.

Usually, there will be a Court Order indicating which parent should have Physical Custody (the parent the child will live with).  Within the Custody Order there is normally a visitation order for the parent that the child does not reside with.

Joint Custody is typically issued by a Court where the parents are in agreement and can get along.  The reality of most  Joint Custody agreements is that the child lives with one parent and the parents share the power to make joint decisions about the child's upbringing.  A true Joint Custody agreement is only realistic where the parents live near each other so that the child can go to the same school and have the same friends.  In a true Joint Custody agreement the childs physical living arrangement is divided between the two parents.

Please note that Custody can change from one parent to another depending upon the circumstances.  Also, note that whoever gets the initial Temporary Order of Custody has the upper hand.  The child will reside with the parent named in the Temporary Order of Custody.   At the end of an agreement by the parents or a trial a Final Order of Custody is issued by the Court. 

Common mistatement  "I gave Temporary Custody" to Ms. Blank".  A Temporary Order of Custody is only good until the next court appearance.  The Court must reissue the Order in order for it to continue.  For example, if I had a Temporary Order and a Final Order was never issued, in all likelyhood the Order is going to expire upon a specific date.

Also, note that there is no such thing as "Permanent Custody".  Custody is a fluid thing and can change from one parent to another where the right set of circumstances is presented.

This Article is provided for general information only.  It does not constitute legal advice.  Nor does it give rise to an attorney client relationship.

Fabiola Jean-Gilles, Esq.