In every divorce with children, the court is required to “allocate parental rights and responsibilities” based on what it finds to be in the children’s best interest. This means either giving one parent sole custody or having both parents share custody jointly.
So what are the differences?
The label “custody” is essentially a predetermined, statutory set of rights and responsibilities conferred upon one parent. The custodial parent will generally have final decision-making authority, more parenting time with the children, and receive support.
“Shared parenting” is more tailored to the specific family. In shared parenting situations, each parent’s parental rights and responsibilities will be defined by a Shared Parenting Plan. The Plan will designate one parent’s address as the address for school placement, determine a parenting schedule, and define how decisions are made. The terms of a Shared Parenting Plan can be agreed upon by the parties in a settlement or ordered by a court after trial. The terms could be closer to equal, or they could look very similar to a sole custodial arrangement.
For example, a Shared Parenting Plan could make Mother the residential parent for school placement, give Father every other weekend and half the Summer, and while requiring that the parents communicate before making decisions, order that Mother be permitted to make final decisions in the event of a disagreement.
Generally, the label of “shared parenting” versus “custody” is a distinction without a difference. However, in highly contentious cases, where parents cannot communicate (whether it is one parent’s fault or both) sole custody may be necessary to pull the children out of the middle of the parents’ conflict.
In determining whether sole custody or shared parenting is appropriate for a particular case, courts are required to consider the Shared Parenting Factors codified by local state laws. The factors may include the ability of the parents to communicate, the geographic proximity of the parents, the ability of each parent to foster love and affection for the other parent, and any history of or potential for domestic violence.
