Oftentimes, custody is the most important and highly contested issue in a family law case. Even in cases with amenable parties, disagreements that may arise are typically related to the physical custody and visitation schedule or parenting plan for their minor child. Physical custody, or parenting time, refers to the time that a parent has the child in their physical care. These terms will be used interchangeably in this article but may represent a shorthand reference to different concepts in your particular jurisdiction.
In some cases, parents share physical custody, which means that the child spends significant time with both parents. This is also known as shared parenting time or joint physical custody in some jurisdictions. In other cases, one parent has primary residential or primary physical custody, which means that the child resides with that parent and has visitation with the noncustodial parent. In practice, the term “visitation” has grown to be archaic and practitioners now commonly refer to time spent with the child by either parent as parenting time. Despite a change in terminology, it is generally accepted that it is in a child’s best interest to have meaningful, predictable, and consistent time in person with both parents.
Physical Custody Standard and Presumptions
In nearly all courts, the best interest of the child is the standard to be applied in determining a custody parenting plan. The court should consider what parenting plan best meets the child’s health, safety, and well-being. While factors vary from state to state and are not always statutory, common factors that a court properly considers in determining a parenting plan in the child’s best interest are the age of the child, the child’s preference depending on the child’s age, and a parent’s willingness to support the other parent’s relationship with the child.
Some states have established statutory presumptions that require courts to presume that a certain parenting plan is in the child’s best interest. For example, several states have a presumption in favor of joint or shared physical custody, which permits courts to presume that sharing physical custody is in the best interest of a child absent a clear reason to find otherwise. Other jurisdictions give the court broad discretion to determine an appropriate parenting plan after evaluating the specifics of each custody dispute.
The statutory purpose typically behind a general presumption in favor of joint or shared physical custody is to assure that children will have frequent and meaningful contact with both parents, who can and will act in their best interests. The presumption is rebuttable. A court can rule that shared physical custody is not in a child’s best interest, for example, when there is proof that a parent has abused the other parent or a child. If a parent successfully rebuts a presumption of shared physical custody, then the burden shifts to the other parent to prove that shared physical custody is in fact in the best interest of the child.
Joint or Shared Physical Custody
There is strong judicial and legislative preference to order shared physical custody in the majority of custody cases to preserve each parent’s access to the child on a regular, consistent basis. In most cases, shared physical custody does not mean that the child’s time is split equally between the parents. It means that both parents have the right to exercise frequent and meaningful periods of parenting time.
Shared physical custody is generally believed to be psychologically and developmentally advantageous to children and can avoid parents and children from developing feelings of loss, rejection, or abandonment. Additionally, it can be beneficial to the entire family for parents to both participate in daily parenting responsibilities, such as purchasing clothes and food for the child and helping with homework.
Courts consider practical issues when fashioning parenting plans, as well. If travel between the parents’ homes or between school and parents’ homes is difficult, whether because of distance, schedules, or traffic patterns, so that the child cannot move easily between homes and maintain their regular activities, an order of shared physical custody may not be in the child’s best interest. An order of shared physical custody in such cases may lead to a decrease in stability in the child’s daily routine. Another factor that courts look at to determine if shared physical custody is appropriate is whether domestic violence or high conflict has been manifested in the family. Shared physical custody can present many opportunities for conflict between parents due to frequent communication and exchange of the child.
If a court orders shared physical custody, there are multiple variations for a workable parenting plan. Courts can order or parents can agree to a parenting plan that grants each parent alternating weeks with the child or a number of different options to allow for meaningful periods of parenting time.
A common parenting plan that is easy to follow is an alternating-weeks parenting plan. In this arrangement, the child lives with one parent for one week and the other parent for the next week. It assures that each parent exercises 50% of parenting time with the child and can be modified for the exchange date to occur on any day of the week. In situations where there is a young child at issue, the parenting plan can allow for a midweek visit to prevent prolonged time away from either parent.
In addition to being easy to follow, this parenting plan is ideal when the child finds frequent transitions to be difficult or when there is a long commute between households. This parenting plan is also preferable when the child is older because parents are likely to be more open to allowing multiple days to pass without seeing the child than when the child is younger. If parents of a young child are considering an alternating-weeks parenting plan with a midweek visit, then it is important that those parents live within a reasonable distance from each other to avoid long midweek commutes.
Another option for joint physical custody is a 2/2/3 parenting plan. This parenting plan allows for the child to live with one parent for two days, with the other parent for the next two days, and then again with the first parent for a three-day weekend. Parents alternate weekends. The 2/2/3 parenting plan can often sound overwhelming to parents at first, but it is typically easy to implement once the parents and child understand its predictable rotation.
Although the 2/2/3 parenting plan can be more complex to comprehend initially, it works particularly well for parents of a young child that want to spend fewer days in a row away from the child than the alternating-weeks parenting plan allows. This arrangement is also beneficial for parents who live reasonably close to each other and want to have equal involvement in the child’s weekday activities, such as soccer practice or piano lessons, that may only happen once per week and on the same day each week. In this scenario, a 2/2/3 parenting plan will allow the parents to alternate weekly participation in the child’s activity. Conversely, this parenting plan is not appropriate if the child struggles with frequent transitions, which can result in the child experiencing extra difficulty keeping up with schoolwork and feeling anxious and disconnected from both households.
A 5/2/2/5 parenting plan is set up similar to a 2/2/3 parenting plan with the exception that each parent has designated days with the child. For example, one parent always exercises their parenting time on Mondays and Tuesdays, the other parent always exercises their time on Wednesdays and Thursdays, and they alternate weekends with Friday, Saturday, and often Sunday overnights each week. This parenting plan differs from a 2/2/3 arrangement because here the parents only alternate weekends and in the 2/2/3 plan the parents alternate weekdays and weekends.
Because a 5/2/2/5 parenting plan can be easier to implement than a 2/2/3, it tends to be a suitable arrangement for parents who want more predictability in their parenting plan. However, this parenting plan has the same drawbacks as the 2/2/3 parenting plan. Parents and children often struggle with frequent exchanges. Consequently, a 5/2/2/5 parenting plan works best with parents who live within a reasonable distance of each other, are able to work together, and can be in consistent communication regarding the child to ensure this arrangement is efficient.
Sole Physical Custody
Parents may request sole physical custody when seeking court intervention to determine their child’s parenting plan. In some jurisdictions, sole physical custody means that the other parent does not have any material unsupervised parenting time with a child. In others, it can mean that one parent has the child living with him or her the majority of the time. While the other parent will have access to the child, the child does not regularly reside with the “noncustodial” or “nonresidential” parent.
Parents typically seek out primary residential custody because they believe it provides a stable structure for the child. In many cases, the child is able to continue living in the same location where they resided prior to the litigation, which minimizes the level of disruption to the child’s established routines. The court can grant the noncustodial parent generous parenting time so that the child can continue to enjoy a close relationship with the noncustodial parent despite the order providing that the child primarily lives with the custodial parent.
Even when the court grants the noncustodial parent generous parenting time, there can be negative effects to a parenting plan where a child primarily lives in one parent’s home to the exclusion of the other’s. Because the child no longer resides with the noncustodial parent, this arrangement can cause both the child and the noncustodial parent feelings of loss. The child may feel like a visitor in the noncustodial parent’s home while the noncustodial parent may feel like a visitor in the child’s life.
Another scenario in which primary residential custody may be awarded to a parent is when the other parent lives far away and it is not possible for that parent to exercise shared physical custody. In such cases, the plan may involve the nonresidential parent and child spending time on long weekends, and enhanced time during vacations and summer with the parent who does not live with the child consistently.
When a parent wishes to materially limit contact between a child and the other parent, it is likely that the court will make such parenting orders only when one parent is unable or unwilling to protect the child’s physical and emotional well-being on a consistent basis. The parent requesting what is called a sole physical custody order in some jurisdictions or supervised parenting time in others will face a high burden of proof when proving the other parent’s unfitness. Courts are commonly persuaded to make such orders by proof of domestic violence or a parent’s ongoing addiction to alcohol or drugs.
Once a court orders a parenting plan where a child is primarily living with one parent, there are many different ways that the parenting plan can be structured. A few common such parenting plans provide for the noncustodial parent to have parenting time with the child on alternating weekends, with a midweek visit, or with disproportionate or extended time on the weekends.
In a parenting plan that provides the noncustodial parent with parenting time on alternating weekends, the child lives with the custodial parent during the week and spends time with the noncustodial parent on every other weekend from Friday evenings to Sunday evenings or Mondays at some point, particularly if school is not in session on Monday(s).
An alternating-weekends arrangement is the most well-known and traditional parenting plan, but there are some criticisms to this arrangement. The biggest criticism is that the child and parent both suffer due to the long absence of 10 or more days from each other. Given the considerable gap between parenting times for the noncustodial parent, an alternating-weekend arrangement should be considered most often when parents live a significant distance apart from each other and the child is older.
Alternating Weekends with One Midweek Visit per Week
To provide a little more parenting time for a noncustodial parent, courts can also grant a parenting plan that is similar to alternating weekends with the addition of a midweek visit. A couple possibilities are to add one overnight visit per week or one evening/dinnertime visit per week.
The benefit in this slight variation to the alternating-weekends arrangement is that the extra visit breaks up the long block of time the child would otherwise not see the noncustodial parent. Of course, the determination in whether a midweek visit on a school night is appropriate depends on the specific family and the best interest of the child at issue. It is important to consider the child’s school routine, extracurricular activities, and sleep schedule in the determination to ensure that the parenting plan does not have a negative impact on the child’s ability to concentrate at school, get homework done, or achieve healthy growth and development.
Alternating Extended Weekends
Another arrangement that could suit a custody arrangement where the child primarily lives in one parent’s home to the exclusion of the other’s is alternating extended weekends. In this arrangement, the noncustodial parent follows a similar schedule to an alternating weekend parenting plan with the exception that weekends are extended until Monday evenings or are started on Thursdays.
An alternating extended weekends arrangement is another option that provides the noncustodial parent with more parenting time than an alternating weekends arrangement but accounts for parents that may not live within a reasonable distance of each other to facilitate midweek visits. This parenting plan is beneficial because it allows noncustodial parents to engage in parenting responsibilities that would typically occur while the child is in the custodial parent’s care, like getting the child ready for school. Again, it is vital to confirm that the noncustodial parent is able to maintain a predictable schedule for the minor child when considering overnight parenting time on a school night.
Other Physical Custody Arrangements
While shared physical custody and primary residential custody with access by the other parent are the customary parenting plans, there are a few other options to choose from that are more unconventional. One such option is split physical custody. This means that siblings within a family are separated between the parents’ households so that one child lives with one parent while another child lives with the other parent. In most cases, courts prefer to keep siblings together in a parenting plan. However, split physical custody arrangements are advantageous in certain circumstances, such as where the siblings have a contentious relationship, where one parent to the exclusion of the other lives near a child’s school, or where one child has special needs and a specific parent manages that child’s special needs.
Additionally, a bird’s nest parenting plan is another option for courts in rare cases, usually only when requested and agreed to by both parents and usually as a short-term measure. A bird’s nest parenting plan allows the child to live in only one house and requires the parents to take turns living in that house with the child during their parenting time. This type of arrangement provides the most stable environment for the child because the child does not have to move from one home to another. Yet, it is only an option for parents who have the means to maintain their own separate home along with the child’s permanent home. Further, it requires that parents share at least one home with attendant loss of privacy and other complications.
Final Words on Physical Custody
Physical custody of a child is often a highly contested issue for parents utilizing the court system to obtain a parenting plan. Across the nation, parents must show that their parenting plan proposal is in the best interest of the child. Courts often order either shared or primary residential custody but can also grant uncommon parenting plans, such as a split or bird’s nest arrangement.
Regardless of the ultimate parenting plan, the court’s primary goal when granting physical custody is to order a parenting plan that is in the best interests of the child. It is generally presumed that having regular physical access to both parents fulfills that objective.