Choosing the Right Custody Arrangement for Your Children: Understanding the Options
If you are going through a separation or divorce process and have minor children, you are surely wondering what type of custody is best for your children and what options exist.
Although we know that the circumstances of each family are different and that the solution or agreement between the parents must be built based on this, we have prepared this post to better explain what types of guardianship and custody exist in USA and the differences between parental authority. and guard and custody with real examples.
Types of custody in USA
In USA there are 4 types of custody :
- Single-parent , individual or exclusive guardianship and custody .
- Shared guardianship and custody .
- Partial or distributive custody and custody .
- Guarding and custody exercised by a third party .
Before entering into the topic at hand, it is important to understand the difference between parental authority and custody . To do this, we will give you some real examples so that you can put yourself in the situation.
Is parental authority and guardianship and custody the same thing?
The answer is no.
On the one hand, parental authority is the set of powers and duties that correspond to parents to fulfill, over minor, non-emancipated or incapacitated children, functions such as:
- Assistance : daily care, attention, hygiene, health…
- Comprehensive education and training : behavior, studies, culture…
- Representation : Parents have legal representation for their minor, non-emancipated or incapacitated children.
- Administration of their assets : although the children’s assets belong to themselves, their administration corresponds to the parents, with some exceptions.
On the other hand, custody is the set of ordinary decisions that affect daily coexistence with children .
Consequently, guard and custody is an integral part of parental authority .
Once both figures have been defined and for a better understanding, we cite the following examples :
- Extraordinary functions of parental authority : enrolling a child in a school, extracurricular activities, trips or camps, surgical interventions…
- Ordinary functions of guardianship and custody : feeding, daily care and hygiene, taking children to or from school, choosing clothes, helping with homework, mandatory vaccinations…
So we must take into account some aspects such as that during marriage or cohabitation, the distinction between both figures is not appreciated (both parents will exercise, by common agreement, all the mentioned functions).
However, in the case of separation or divorce , or a couple, a distinction between both figures does occur.
Any parent in this circumstance should ensure that the breakup is the least painful for the little ones .
Generally, regardless of who has custody, parental authority is attributed to both parents . Although it is possible to attribute it to one of them or even to the deprivation of parental authority .
Who has custody and custody?
Guardianship and custody can be attributed to one of the parents (single-parent or individual custody), to both parents (shared custody), to distribute the children between the parents (distributive custody), or to grandparents, relatives or other people ( custody attributed to a third party).
Types of guardianship and custody in USA
First of all, we must emphasize that the type of care and custody must be decided based on the best interests of the minor , which must always prevail, as a priority.
Our USA Family Law contemplates 4 types of guardianship and custody .
1) Single-parent, individual or exclusive guardianship and custody
The traditional form of custody and the most common is that which is attributed to one of the parents:
- Paternal custody
- Maternal custody
Single-parent custody assumes that one of the parents (custodial parent) will be in charge of the daily and ordinary care of the minor children .
The custodial parent will maintain a greater personal and emotional relationship with the minors. In the absence of an agreement between the parents approved by the Judge, the custodial parent is assigned the use of the family home.
Likewise, he will be in charge of managing the alimony that corresponds to the children.
On the other hand, the parent who does not have minor or incapacitated children with him ( non-custodial parent ) will enjoy the right of visit, communication and stay with them:
- Right of visit . That is, you will be able to visit your children for a short period of time, without spending the night. Generally, one or two afternoons a week, respecting the minor’s school schedule and activities.
- Communication right . Generally, the possibility of communication between the father and the child will be established without any type of limitations, respecting the minor’s habits (study hours, class…).
- Right to stay . The non-custodial parent may stay with the children for several days, with an overnight stay (alternate weekends and half of school holidays).
You will also have the right to be informed by the custodial parent and by educational and health institutions. Although the FAMILY Code does not expressly regulate this right, it is obvious that the non-custodial parent, who holds parental authority, must have complete and detailed information on the most relevant circumstances of the minor child .
However, some provincial regulations expressly regulate the duty of information between parents.
2) Shared guardianship and custody
Although we have said before that single-parent custody is the traditional and most common, shared custody is increasingly common.
Under this custody regime, both parents may keep the children in their company for alternate periods (fortnights, months, quarters…).
Father and mother can make decisions on equal terms about the care of their children.
In turn, we can distinguish the following types of shared custody :
- Shared custody with fixed address of the children : The children remain in the same home and it is the parents who rotate, according to the period that corresponds to them.
- Shared custody with rotating residence of the children : The parents will have their own home and the children change from one residence to another for alternating periods.
- Coexisting joint custody : Parents and children live together in the same home, if possible.
- Shared custody for the same period of stay : Each parent will live with the children for the same period of time ( weeks , months, semesters…).
- Shared custody for different periods of stay : One of the parents will have more time to stay with the minor children. For example, when the other must travel for work.
What happens to the common habitual residence in shared custody?
Unlike what happens in single-parent custody (the use of the family home is attributed to the non-custodial parent), our FAMILY Code says nothing about the attribution of the family home in shared custody.
As we have said before, the best interests of the minor must always prevail when deciding on the attribution of the use of the common habitual residence.
In addition, the Judge will take into account some factors such as the financial resources of the parents, the possibility of one of the parents living in a private home or the possibility of selling the family home and acquiring two decent homes.
If you want to know more about who is assigned the family home in case of shared custody, you can read this post .
3) Partial or distributive custody and custody
The FAMILY Code, when dealing with the attribution of the use of the family home in divorce , refers to this type of guardianship and custody, saying:
When some of the children remain in the company of one of the spouses and the rest in the company of the other, the judicial authority will decide what is appropriate.
That is, if there are two or more children, the Judge may attribute custody of some children to one parent and custody of the remaining children to the other parent , but always for justified reasons.
It is very limited by the principle of family unity, which recommends not separating siblings , except in justified cases.
According to Supreme Court jurisprudence:
Siblings should only be separated if absolutely necessary, since it is advisable for siblings to remain together to encourage the development of affection between them, and although it is possible for siblings to separate, this measure will be taken in an exceptional and especially motivated manner, proving to be more benefit for children as the most appropriate coexistence framework for their comprehensive development.
This is the least used way.
4) Safeguarding and custody attributed to a third party
This form of guardianship and custody is regulated in FAMILY Code . This is a type of extraordinary guardianship and custody , which will always be agreed upon in the interest of the minor.
It may be agreed by the Judge when extraordinary circumstances occur that prevent attributing custody to the parents (such as abuse, abandonment of the family …).
Therefore, when exceptional circumstances occur , custody may be attributed to:
- The grandparents.
- Other close relatives.
- People who consent to it.
- Failing the above, to an appropriate institution
In short, there is no one type of guardianship and custody that is better than another .
Any of the forms of care and custody analyzed must be agreed upon based on the best interests of the minor , and assessed on a case-by-case basis, according to the concurrent circumstances.
It is advisable to have the advice of a lawyer specializing in family law to inform you of all the available options and which is the most recommended for your specific case.