What Is Sole Custody, How To Get It & Things To Consider

Child custody is a sensitive and crucial issue a couple faces while going through a divorce. Child custody can be given solely to a parent, also known as sole custody, where the other parent often has the right to visit the child under certain conditions. Alternatively, child custody can also be shared by the parents.

A couple should make the right decision while considering their child’s future and best interests. Here, we talk about what sole custody is and what you need to know before moving to court to get sole custody of your child.

What Is Sole Custody?

Sole custody is one parent getting full custody of the children after the divorce. Usually, a parent can get either legal custody or physical custody of the child (1).

1. Legal custody gives the parent the right to make decisions regarding the child’s education, religious upbringing, medical care, moral development, and other important decisions in their life.

2. Physical custody gives the parent the right to direct the child’s day to day life. It also includes actual physical care, such as where the child must reside and how their day-to-day needs are met.

In the case of sole custody, both legal and physical custody rights are the responsibility of one parent, who is known as a legal custodian. The other parent may or may not have visitation rights depending on the child custody laws of that particular state. In some states, the term full custody is used when the complete rights over a child are given to one parent.

When Does A Parent Get Sole Custody Of The Child?

The courts usually consider joint custody so that the roles and responsibilities are divided between both parents. But in some cases, the court intervenes and awards sole custody to one parent. Read on to know when the court chooses the sole custody option over joint custody.

• Abuse: When one of the parents has a history of physical or emotional abuse, then the court can award sole custody to the other parent to protect the interests of the child. In the case of a serious threat from one parent, the court may also restrict the abusive parent from visiting the child (2).

• Neglect: When the child is subjected to neglect, with one or neither of the parents providing for the child’s basic needs such as medical care, adequate food, clothing, shelter, and protection, the sole custody is given to the responsible parent or a close relative (when both the parents are neglecting the child).

• Abandonment: When one parent abandons the child and is unwilling to take care of them, then the other parent could get sole custody. If both the parents have abandoned and show little interest in the child’s welfare, then the court may give sole custody to grandparents or close relatives.

• Addictions: If the parent is addicted to alcohol, drugs, gambling or other additions and is unable to take care of the child’s well-being, the court may give sole custody of the child to the trustworthy parent or a close relative.

• Mental illness: If the parent has a mental disorder or is suicidal, then the child cannot be left under their care. In such situations, the court can intervene and award the sole custody of the child to a stable and healthy parent or a close relative capable of looking after the child.

• Incarceration: If a parent is facing a prison sentence, then they obviously will not be available to take care of the child. Then the court may offer sole custody to the other parent and might award visitation rights to the imprisoned parent.

• Relocation:  After the split, if one of the parents decides to relocate to another country, it may not be possible for them to get involved in the child’s life. In such situations, sole custody is granted only when the leaving parent agrees to it.

During the divorce, the partners will have to discuss all the possible issues surrounding custody. They can come to a consensus that is in the child’s best interests, and the court will pass the judgment accordingly. But, if the partners decide to go to trial, the court might decide on joint custody or sole custody with visitation to the other parent.

When one of the parents falls under any one of the above criteria, then the other parent has to prove in the court that the partner is incapable of taking care of the child to win sole custody.

How To Get Sole Custody?

While deciding about custody and visitation, the court considers the following factors to deliver a fair verdict.

The biggest factor to decide a custody battle is the ‘best interest of the child,’ which depends on (3):

• The age and health of the child

• The emotional bond between the child and each of the parents

• The financial and emotional capacity of the parent in taking care of the child

• Any history of abuse, violence, and substance abuse of the parents

• The child’s ties to the school, home, and the community

If both partners agree to sole custody, then the court will ask the parent to produce all the documents, a parenting plan, and a visitation schedule. If everything is satisfactory, the court will then sign the agreement. If the partners cannot conclude on child custody and visitation plans, then the court will appoint a neutral third party to help in mediation.

When one of the parents is abusive or incapable of taking care of the child but still insists on joint custody, the other parent can win sole custody through a trial. Then, the other parent must convince the court and obtain a court order to continue fighting for joint custody.

In the case of a trial, the parent looking to win sole custody must prove to the court that it is best for the child to stay with them and that joint custody with the other parent is not. If one of the parents is abusive or unfit, then the other parent needs to produce supporting evidence in the court. If the custody battle does go to court, you should have a competent attorney to argue your case.

If the court finds the evidence satisfactory and believes that sole custody is in the best interest of the child, it passes the order, with or without visitation rights. However, the parent who is denied child custody or visitation can appeal against it.

What Are The Benefits Of Sole Custody?

While it is always best for the children to be nurtured by both parents, under certain circumstances, sole custody has its own benefits.

• It helps protect the child from an abusive or negligent parent.
• It shields the child from emotional trauma and helps in establishing greater consistency.
• It is easier to accept major decisions regarding the child’s future when there is high friction between the parents.
• Sometimes, sole custody allows the children to grow in a caring and nurturing environment, which joint custody may fail to provide.

Things To Consider Before Requesting Sole Custody

Sole custody should not be requested to punish your ex or avoid conflict or future communication. It is a huge responsibility and will significantly impact how the children will grow up.

Before demanding sole custody, make sure it’s for all the right reasons because the child’s future is totally in your hands. So ensure you are geared up for such a responsibility.

If it is due to genuine factors such as the relocation of one of the partners or abusive or harmful behavior, then apply for sole custody.

Also, if the court sees that both the parents are available and fit to take care of the children, then it will reject sole custody and advise parents to learn to work as a team for the sake of their children.

Are There Any Alternatives To Sole Custody?

Dependency Court is an alternative to sole custody (4). When a child is subjected to neglect and abuse, then the court removes the child from the family. The child is not handed over to the parents until the court decides they are fit enough to care for the child. This is when child protection services also come into the picture.

If a child has been put under the care of the Dependency Court, the child’s parents can visit the child under the supervision of a family service counselor. If the parents agree to the court’s orders to participate in the reunification services, then the court could allow them to visit the child unsupervised (5).

Sometimes, the parent who was denied visitations due to abusive or harmful behavior may be granted access to the child if they can demonstrate good conduct.

Another alternative is both the parents agreeing to a parenting plan (in joint or shared custody) in which one parent has less time with the children than the other (can modify later) (6). The court will allow this.

References

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