If the parents of minor children are not married, but a dispute arises over the children’s care, control, health or well-being, an application for custody may be necessary. The application requests relief from the court to resolve those issues. One of the major issues is what kind of custody should the parents have, and whether they should share custody. Visitation, or what we prefer to call it today, parenting time, is also determined as part of that custody action.

If the parties are not married, then paternity needs to be established when determining final orders of custody. This means that the parties either agree that the father is the biological father, or they must take a DNA test to prove he is or is not.

Child custody is also part of any divorce action, annulment action, or legal separation action that involves children.

There are three kinds of legal custody: 1) Sole custody; 2) Joint custody; and 3) what I call the “hybrid” custody.

Sole custody: one parent makes all of the decisions regarding the children.

Joint custody: the parents share the decision making process equally.

“Hybrid”: the parents try to share the decision making process and if they don’t agree on a particular decision, one parent has final say.

“Legal” custody is not to be confused with “physical custody.” Many people who do not consult with a lawyer (and many who do, unfortunately) confuse the two.

Physical custody describes who the children live with on a day to day basis. There are three kinds of physical custody.

Sole physical custody: the children live solely with one parent. The other parent either has a parenting time schedule with the children, or does not see the children at all.

Primary physical custody: the children live primarily with one parent most of the time. The other parent has a parenting time schedule with the children and this usually includes overnights.

Shared physical custody: the children share their time equally or almost equally between both parents’ households.

Let’s review this: If a parent has sole custody, then that parent has sole legal custody and sole physical custody. The other parent may or may not have parenting time with the children.

If the parents have joint legal custody, they may share physical custody or one of the parents will be primary custodian. Their joint legal arrangement may be a “hybrid” situation or they equally share decision making.