In the US, 40% of states try to give parents equal time when determining custody. But, that is not always possible. There are different types of custody, and every situation will be unique. 

Child custody frequently gets misinterpreted and misused. Even courts and Oklahoma legislature have difficulties with its complexity. However, it is important to understand that there are multiple aspects to child custody and not one definition.

Legal Custody

Legal custody is the right and responsibility to make important decisions for a child’s upbringing. These decisions can include matters related to education, healthcare, religion, extracurricular activities, childcare and overall well-being. Essentially, legal custody means a guardian has decision-making authority over his/her child.

Legal custody does not always have to be shared equally between both parties. When one parent has sole legal custody, they have the authority to make major decisions when the other parent objects to a decision.

With joint legal custody, both parents share the decision-making responsibilities, which require cooperation and communication for the child’s benefit. Which parent maintains legal custody of a child is determined by the state and other private sector actors. For example, if a parent has sole legal custody, a school administrator will adhere to that parent’s authority when enrolling a child into a school.

If the parents share joint legal custody, and one parent objects to enrolling a child in a school, typically the school will refuse to enroll the child. The same is true with healthcare providers. If one parent has legal custody, a doctor or hospital will abide by that parent’s directives. If the parents share joint custody, the provider will typically seek the input of both parents in non-emergency situations.

Importantly, in situations where one parent is granted sole legal custody that does not mean the non-legal custodial parent is completely deprived of parental rights. Regardless of legal custody, both parents must be consulted on all important decisions regarding their child(ren). For example, if a parent who has sole legal custody routinely makes important decisions for the child(ren), especially those that will impact the other parent’s time with the child (such as school placement, extracurricular activities, childcare providers) without consulting the other parent, courts will not hesitate to modify legal custody.

Likewise, when parents share joint legal custody, the court presumes both parents can effectively communicate and co-parent their child(ren) with little to no court intervention. Parents may disagree from time to time, however, to maintain a joint legal custody regime parents must be able to work through problems without resorting to initiating litigation. If joint legal custodians always disagree, that means effective decisions are not being made for the child(ren), so the court may be inclined to grant sole legal custody to the parent who can prove they are more committed to making decisions that benefit the child and more likely to consult with the other parent.

Physical Custody

Physical custody is where the child sleeps on a day-to-day basis. The court will calculate how many nights the child spends with each parent out of a 365-day year. Under Oklahoma law, physical custody of children must be defined in the custody order with a specific schedule. Physical custody is also referred to as visitation or parenting time. Parents are defined as having shared parenting time when one parent has at least 121 overnights per year. Overnights of 121 reflect a threshold number for a parent to receive shared parenting credit for purposes of calculating child support.

Frequently, people will use visitation instead of physical custody in situations where one parent is designated as the primary custodial parent (typically for purposes of determining where the child goes to school). The primary custodial parent has primary physical custody of the child(ren) while the other parent has visitation. But in reality, physical custody, visitation and parenting time are interchangeable and have no legal distinction.

Notably, it is possible to have equal parenting time (where the parents share physical custody on an 182/183 overnight basis per year) but not joint legal custody. This would mean that while the child spends an equal number of overnights with each parent, one parent has final decision-making authority for the child. 

New custody litigants will frequently meet with an attorney and say, “I want full custody,” meaning they want final decision-making and exclusive physical custody. There is no such thing as the phrase full custody. Absent situations involving catastrophic physical or sexual abuse of a child, a parent will not receive sole legal custody and exclusive physical custody. 

Sole Custody

Split custody is also used in different contexts by courts, the Oklahoma legislature and the Oklahoma Child Support Guidelines in situations with multiple children to determine child support.

However, courts also have used this phrase to refer to situations where, for example, a child resided with Parent A during the school year and resided with Parent B during the summer. In one Oklahoma Court of Civil Appeals case, the court upheld an award of split legal custody where the parent having physical custody of the child at the time was designated as the legal custodian during that time.

Find the Help You Need for Your Custody Arrangements

Understanding the different types of custody and what factors a court will use to determine is crucial to the best custodial arrangement for your child(ren), if you and your co-parent cannot agree. An experienced attorney can help you understand it all and be your advocate. 

At Doerner, we are known for skillful problem-solving and effectively representing clients with complex legal issues. Schedule a consultation today to discuss your case.