If your case involves minor children, a determination of the custodial arrangement that is in theirs best interests will be made. In Nebraska, there are two types of custody – legal and physical. Each serves a different purpose, and there can be variations on how legal and physical custody is awarded. Remember – the paramount concern in the court’s eyes is which arrangement will be in the best interests of your children, not what is in the best interests of the children’s parents.
Legal custody refers to the power to make fundamental decisions regarding your children. Fundamental decisions can include the school your children go to, what religion they should practice, and who their health care providers are. Generally, a court will either award one parent legal custody or award both parents joint legal custody.
If a parent has sole legal custody, he or she is the primary and final decision maker for these important decisions.
If parents share joint legal custody, then they will share equally in the decision making for their children. The Nebraska Parenting Act defines joint legal custody as the “mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child’s welfare, including choices for education and health[.]” Joint legal custody is generally recommended when the parents are able to effectively communicate with one another and have similar parenting philosophies.
Sometimes, a court may award one parent legal custody over one fundamental decision (e.g., school) and award the other parent legal custody over another fundamental decision (e.g., religion). This means that one parent will have the final say for certain decisions and the other will have final say for other decisions. Variations of sole and joint legal custody are possible. The determining factor will be which variation is in your children’s best interests.
Note: legal custody is not the same as parental rights. If your spouse is awarded legal custody, your parental rights to your children are not affected. Parental rights are those that are inherent by virtue of the parent-child relationship. Legal custody only determines decision making power.
Physical custody refers to the physical location where your children reside and is interrelated with parenting time and child support. Like legal custody, one parent may have sole physical custody, or both parents may have joint physical custody.
If a parent has sole physical custody, he or she has the children under his or her control for a majority of the time. In a one-year period, if a parent has the children for 70% of the year (or approximately 256 days), then that parent is considered to have physical custody. Of course, the other parent retains his or her right to parenting time.
The Nebraska Parenting Act defines joint physical custody as the “mutual authority and responsibility of the parents regarding the child’s place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time[.]” Typically, a custodial arrangement is considered “joint” if the parents share time with the children equally (50/50) or up to a 60/40 basis.
In cases where there is more than one child, some parents may consider splitting custody. Split custody is different from joint physical custody. Split custody means one parent is the primary physical custodian of one child and the other parent is the primary physical custodian of the other child. Given the importance of sibling relationships, this arrangement is rare.
The designation of sole or joint physical custody has a direct impact on parenting time and child support. Be sure to talk with your experienced family law attorney about these implications before agreeing to any arrangement.
Note: if one parent is awarded physical custody, that does not mean that he or she will have the children 100% of the time. The non-custodial parent will have the right to parenting time which will be spelled out in your parenting plan.