Custody is no longer a legal term in divorce. The court no longer orders custody and visitation. Now we create “Parenting Plans”, which in reality are comprised of custody and visitation. Whenever possible, the goals and strategies for the Parenting Plan should be designed before the divorce is filed. Initial separation, relocation, and primary care of the children can start a course of action that cannot be easily reversed. Do not surrender early the custody and visitation that you will want later. Temporary Orders have a tendency to become final orders. Spend time and thought designing the parenting plan that you want for your children, and then work with your attorney to implement that plan from the beginning of the divorce.

Child custody is a common term that refers to the issues of both physical and legal custody, as well as visitation schedules. While custody determines which parent has the children on which day, it also covers important issues about who has authority to make decisions for the children. All the details and specifics about custody are detailed in the parenting plan.

Physical Custody

Physical custody simply means which parent has the right to have the child physically with them. It is the residential care of the child. Washington divorce law uses the term “residential placement” to designate the children’s primary residence. The “residential schedule” then maps out visitation, detailing the specific periods, days, and times each parent has the children. The Parenting Plan spells out all the specifics of custody.

Legal Custody

While physical custody determines which parent the children live with and the schedule of visitation, Legal Custody sets forth who is authorized to make decisions regarding the children. You no doubt want to be involved in all the major decisions regarding your children. Even though parents are no longer married, there are so many decisions about education, health, and the welfare of the children to be made. The Parenting Plan will specify the legal custodian to make decisions.

In many cases, both parents are able to agree to fully share the responsibility to make major decisions. In some divorce cases though, the court may limit one parent’s legal custody. Issues involving substance abuse or domestic violence could result in one parent losing the ability to make decisions for the children.

What If You Were Never Married?

Marriage is not a requirement for the court to determine child custody. Any parent can seek to establish a Parenting Plan with the court. Unmarried child custody is a growing issue. Please see our Paternity and Family Law section.

Next we recommend: Child Visitation (7 min read)