One of the most misunderstood concepts in divorce matters is the issue of custody. Most people associate the word custody to which parent the minor child or children will live with after the divorce. However, custody involves much more than where the children will be living following the divorce. In any Gilbert divorce case involving minor children, the judge will have to determine which parent will have primary physical custody and who will have legal custody. These are two very different issues that involve the rights of parents.
Physical Custody is what most people think of when they think of the word custody. The parent who is given primary physical custody is the parent with whom the child/children will live with most of the time. In most cases, it is not possible for the minor child/children to live with both parents an equal amount of time. There are many factors the court will consider when determining which parent will have primary physical custody. Some of these factors include the age of the child/children, which parent retains the marital home, proximity to the school and other familiar surroundings, work schedules of parents, whether one parent moves out of town or out of state, whether the children feel more comfortable with one parent. This is not an exhaustive list. Most importantly, the judge will consider what is in the best interest of the child. It is important to understand that you do not lose any parental rights if you are not given primary physical custody. Most custodial rights relate to legal custody. If you do have children I recommend that you spend a lot of time on these details with your divorce attorney
Legal Custody is the ability to make decisions for the minor child/children following divorce. This includes medical decisions, educational decisions, and religious decisions. In most cases, parents will share joint legal custody. Parents who share joint legal custody continue to make important decisions in the above categories together. In some instances, one parent can be awarded sole legal custody. A parent that is awarded sole legal custody has the legal right to make all necessary decisions for the parties’ child/children without the input from the other parent.
Legal custody is one of the most important issues a family court must decide in any divorce case involving minor children. When deciding the issue of custody, the family court judge is required by Arizona law to consider the factors listed in A.R.S. §25-403. The judge should not favor one parent over the other because of that parent’s sex. In addition, the court must consider the ability of the parents to cooperate and make decisions together and whether joint custody is logistically possible. Finally, and most importantly, the family court judge must make any custody decision with a focus on what is in the best interest of the child/children.
The concept of custody is often very hotly contested and very fact-intensive. Once a custody decision is made, it is often difficult to modify later on unless a substantial change of circumstances takes place. For this reason, consulting a Gilbert family law attorney with substantial experience in dealing with custody issues is among the most important steps someone going through a divorce can take.