What is the Difference Between Sole and Shared Custody?

One of the significant outcomes of divorce is deciding how the two parents will continue to care for their children. In most cases, the spouse filing for divorce may want to pursue sole custody if they deem the other spouse not fit to raise the children. Separating spouses may also decide to share the responsibilities of raising children equally, even when they no longer live together.

Deliberating on child custody is a weighty decision that calls for careful consideration of what arrangement works best for your children moving forward. For this reason, the San Diego Divorce Attorney has prepared this guide to help you understand the difference between sole and shared custody, so you make an informed decision.

Before delving into sole and joint custody, let us define the two kinds of custody agreements:

• Legal custody – in this arrangement, the parent has the right to make decisions about the child and have access to the child's private information, e.g., medical history, birth certificate, etc. 
• Physical custody – in this arrangement, the parent has the right to be present in their child's life and live with them under the same roof.

Any custody settlements must indicate the parents' legal and physical rights to the child, whether sole or joint custody is awarded.

What Does Sole Custody Mean?

In the arrangement of sole or full custody, the court stipulates that only one parent is responsible for making decisions about their child's life, such as education, everyday activities, diet, etc. The custodial parent has exclusive physical and legal custody of the child, and this decision can only be overturned by a court of law. Nevertheless, the other parent (non-custodial) is still allowed to make individual everyday decisions regarding their child; for instance, the child's meal plan when it is their turn to watch them.

While courts don't just award sole custody to mothers as a general rule, fathers are still treated differently in family courts. As per the US Census Bureau, only one in six exclusive custody arrangements are awarded to fathers, thus indicating a negative bias toward fathers, but this should not deter you from exercising parental rights.

As mentioned above, custody settlements are based on legal and physical rights on children, and the same applies in a sole custody outcome. The parent can either be granted sole legal custody or sole physical custody. Sole custody is ideal in the following scenarios:

• When the custodial parent was already making the most parenting decisions during the marriage
• When the separated parents live far apart, even in different states or countries
• If the divorce was acrimonious and the parents don't communicate well
• If one parent is deemed unfit to raise children, e.g., an addict or declared clinically insane
• When both parents agree that sole custody is the best way forward after divorce

What Does Joint Custody Mean?

Joint custody, on the other hand, is an arrangement where both parents have legal rights to make decisions about their child, and both of their opinions count equally. If any parent makes a significant decision without consulting and agreeing with the other parent, the offending parent will be held in contempt of the law. Seeing that raising children involves plenty of decision making, the divorcing parents must iron out what topics should be discussed jointly during their custody settlement. In some states, both parents are listed as "residential parent and legal custodian," and they are expected to work out a schedule where they both get equal time with their child.

Joint Custody versus Shared Parenting

Joint custody is often interchanged with shared parenting, but the two differ in the number of times parents are legally allowed to spend with their offspring. Joint custody or co-parenting is a situation where both parents split the time with kids equally, and this can be difficult in scheduling and logistics. For instance, a parent who gets the kids from Wednesday through Saturday may have to travel out of state for work, thus requiring the other parent to step up. Such changes, especially without fair warning, can be inconveniencing for the other parent who could have other plans.

Shared custody or shared parenting is more relaxed as it does not mandate equal sharing of time. Most parents try to maintain a fifty-fifty split of time whenever possible, but equal sharing is mostly in regards to decision making. For instance, even if the children stay with their mother during the week and their father over the weekends, the two parents have the same decision-making rights, e.g., about education.

In both joint custody and shared parenting, the separated spouses have equal rights on the following:

• Parenting time arrangements
• After-school and social activities
• Decisions about education
• Medical treatment
• Financial responsibilities
• Religious activities or institutions
• Travel plans

California Law Favors Joint Custody Arrangement

The law in California is biased towards maintaining joint custody after divorce as this helps in maintaining relationships between children and both parents. This arrangement gives a sense of normalcy and stability after the hustle of divorce finishes, and children start acclimatizing into their new life. When the court is deciding what option is in the best interest of children (CA Fam Code § 3011), it considers:

• The health, well-being, and safety of children takes seniority
• The kids gain from regular and enduring contact with both parents

If you want to seek full or sole custody, you must present a compelling case with persuasive evidence why they judge you should rule in your favor over the other parent. The same applies to the other parent to whom a sole custody order is being leveled; you must be prepared to challenge this request if you deem yourself the better parent. Divorce proceedings often turn nasty, and the aggrieved spouse (e.g., one who was blindsided by the petition) could act in bad faith requesting full custody of the kids.

Other circumstances like infidelity in marriage or abuse could lead one spouse to pursue full custody. Regardless of the situation, California law requires you to make a compelling case of why sole custody is the best option for your children. Before deciding on what custody arrangement you will seek in court, let us understand the advantages and disadvantages of sole and joint custody.

What are the Advantages of Sole Custody?

Sole physical custody allows children to have a base where they live with the custodial parent more than 50% of the time as opposed to being shuffled back and forth between parents. The non-custodial parent is not left out of the picture as they are granted ample visitation time. Here are the advantages of pursuing this option:

• Children live in one primary location, so they don't have to carry their belongings such as clothing, textbooks, toys, etc. to and from two homes
• The non-custodial parent is often granted visitation rights, including sleepovers in some cases, and this helps to nurture a close bond with both parents
• Children can resume established routines such as attending the same school, which helps with fostering a sense of stability
• More often than not, children continue living in the same residence they were living in before divorce, so there is less disruption to their lives

What are the Disadvantages of Sole Custody?

The above benefits point toward protecting children of divorced parents from too much change that takes a while to get accustomed. They don't have to lose neighborhood friends, and they still see both parents. Nonetheless, sole physical custody or sole custody has the following disadvantages:

• Children no longer live with both parents, and this poses a considerable loss especially when the kids are young and need both parents constantly
• The visiting parent may use visitation for fun activities like playing at the park, thus denying children regular family interactions like supervising homework, cooking, doing chores
• Ironing out the basics of this arrangement is not easy especially when the divorce was combative, and the custodial parent unlawfully limits access to the kids
• Sole custody perpetuates the notion that the custodial parent is more befitting to raise kids especially after a lengthy court battle and they can use this against the other parent
• After the dust settles, the children and the non-custodial parent feel the pain of separation, and it is even more pronounced as the kids advance in age
• In due course, the non-custodial parent may start to feel like an outsider as the kids adjust to their new life and the custodial parent starts dating or even marry

What are the Advantages of Joint Custody?

Joint legal custody of children after divorce is an ideal situation to keep both parents equally involved in their children's lives. Joint physical custody is excellent but not as easy to implement due to work responsibility and living situations. Pursuing joint custody of their kids yields the following advantages:

• Strong bonds – living in two households helps children to sustain strong, healthy relationships with both parents, so there is no conflict of loyalty. Children have constant access to both parents, which is vital as their needs evolve with age.
• No angry children – when children are denied access to one parent, they tend to vent pent up anger and frustration on the custodial parent blaming them for the situation. More so, they could have psychological disorders like depression and become withdrawn from social life.
• More peace – when both parents have equal rights to their children, there is less bad blood between them and the children benefit by having two peaceful households. What's more good behavior from both parents sets a great example to kids and save them from the guilt of seeing war as their fault.
• Positive role modeling – children of divorced parents who share custody are often perceived as good and awful in equal measure, just like in typical families, which is terrific. When parents are on the same page, none is seen as stricter or more lenient.
• Less emotional trauma – children bear the brunt of dissolution, and they often blame themselves for what is transpiring. Joint physical custody mitigates the impact of witnessing one parent leaving and the ensuing sense of rejection and damaged self–esteem.

What are the Disadvantages of Joint Custody?

Joint custody may be the next best option after parents separate, and the court grants dissolution. Even so, there are glaring downsides to this arrangement as outlined below:

• Interfering with stability – even in the most civilized interactions, the child's security takes a hit as they have to keep going back and forth between two households bringing their schoolwork, favorite toys, and so on. If things start falling by the wayside, the child will miss out on after-school activities, and time with other siblings (in cases of half-siblings).
• Additional expenses – managing two households is not an easy feat, especially when financial resources are in short supply. There will be duplicate costs on clothing, meals, and activities, not to mention the cost of keeping two residences or moving to a larger space to accommodate the new living situation.
• Communication hurdles – joint custody is often a forced arrangement put upon by the court, believing that access to both parents yields significant benefits to children. Depending on what triggered the separation and irreconcilable breakdown of the marriage, communication problems are bound to arise, and if not addressed, things could run amok. Constant bickering or non-communication creates a toxic environment for children.

Types of Visitation Rights

If the court grants sole or joint custody, one parent is usually shortchanged for time, so they need visitation rights to allow them access to their child. There are different kinds of visitation rights:

• Visitation per defined schedule – this kind of arrangement is formulated beforehand by the court and parents, so there are no conflicts and confusion. These schedules are detailed to include exact dates and times, and they include special occasions like birthdays, and holidays like Labor Day, and vacations.
• Supervised visitation– this approach is applicable when the children's safety and well-being require that visitation be supervised by the primary parent, a professional agency, or an appointed adult. This approach can also work if one parent has been away for some reason, e.g., abandonment of family or there are threats of abducting the child.
• Reasonable visitation – this arrangement doesn't outline the fine details of when children will be with each parent. This order is flexible so parents can work out a suitable schedule, but this is recommended when parents there is no animosity and parents communicate well. If one or both parents act out of line, conflict is inevitable, and thus lending children to needless suffering.
• No visitation – this measure is taken when the non-custodial parent breaches the terms of visitation such as by extending curfew, refusing to return the child, putting the child in harm's way, etc. If the court deems that visitation, even with supervision, does more harm than good, the other parent is denied further contact with their child.

How Does California Family Court Decide Custody?

The manner of granting sole or joint custody varies from state to state and in San Diego, deliberations are made by California Family Code § 3011 that stipulates the following factors:

1. Health and Safety 

A family court judge can deny sole custody under the following circumstances that jeopardize a child's safety:

• If the parent has been convicted of physical and sexual abuse of a child
• If a parent has abused their partner or child provided, these allegations are corroborated by a reliable entity like a child protective agency.
• If there is routine abuse of alcohol and controlled substances

2. Ability to Co-parent

The court will examine which parent has better communication skills and who is more likely to promote an amicable relationship to facilitate co-parenting. Parents whose conduct undermines the child's relationship with the other parent, such as making false allegations or other unbecoming behavior are met with disdain. The court may act within legal guidelines and limit custody or visitation with said parent.

3. Child's Preference

If the child is considered mature enough (e.g., preteen or teenager) to discern which custody option is more befitting for them, the court is mandated to oblige to these wishes. California law does not stipulate the agreeable age of when a child can make this determination, so it is upon the court's discretion.

4. Stability and Permanence

While the court and family can apply the “widest discretion” (CA Fam Code § 3040), sustaining established patterns of care and safeguarding emotional relationships between children and their primary parent(s) and siblings is of utmost importance.

Find a San Diego Divorce Lawyer Near Me

The state of California is heavily inclined toward allowing access to both parents to promote stability and continuity of the kids. To this end, a family court will be keen to find ways of sustaining access to both parents even if not physical access as this is not always feasible. If you are contemplating filing a divorce petition, you need sound legal counsel to help you determine which kind of custody is best applicable. We at San Diego Divorce Attorney are experienced in handling child custody cases even in the most spiteful dissolutions. If you are in need of a legal mind to plead your custody case, reach us at 858-529-5150 and let us fight for the best interest of you and your children.