If you have children and are thinking about divorce, you will also have to think about how the divorce may impact your children. As part of the divorce process, the court will award custody to one of or both of the parents.
Custody is divided into two types: legal custody and physical custody. Legal custody is the right of the parent to make major decisions affecting the child’s life, such as religion, medical care, and education. Physical custody refers to which parent has the actual possession and control of the child or children. Both types of custody can be given to either spouse, or the court may award, or you may agree on joint custody. Joint legal custody means that both parents share in the decision making. Joint physical custody means that the children divide their time more or less equally between the two parents.
In awarding custody to one or both parents, the court’s only job is to do what is in the child’s best interest. While this is the only goal of the court, in reaching this decision, the court considers many factors, including:
Depending on the child’s age, the child’s preference to be with one parent or the other will be given greater weight. For children under age 11, the child’s wishes are not considered. For children ages 11 to 14, the child’s wishes are considered but are not binding. For children ages 14 or over, the child has the right to select the parent that the child wants to live with, unless the parent is determined to be unfit. For more information on a child’s election, please see our more extensive discussion here.