Back in the joint custody era, which lasted from about 1970 to 2010, sole legal custody arrangements were rather common. In those days, children “lived with” one parent and “visited” the other parent. So, a sole legal custody order was basically a limited visitation custody order.
Beginning around 2010, most states passed co-parenting laws. The 2016 co-parenting law in Illinois is one of the most recent examples. Now, courts expect both parents to actively participate in the child-rearing process. Judges still issue ten sole custody orders, but only in unusual cases.
Put another way, before 2010, courts often awarded sole custody in deadbeat dad and delinquent dad (or mom) cases. Now, judges award sole custody in dangerous dad (or mom) cases.
Significantly, now as then, the sole custody or other order is basically a fallback. These orders usually include language that allows unlimited parent-child visitation by mutual agreement of the parents.
Furthermore, now as then, the best interests of the child controls parenting time provisions (the new name for custody and visitation provisions in most states). What follows are the top 10 reasons for sole legal custody.
Abuse
The differing degrees of poor parenting (deadbeat, delinquent, and dangerous) are on full display in this area.
Incidentally, as far as most judges are concerned, domestic abuse is domestic abuse. The old saying “sticks and stones may break my bones but words can never hurt me” is baloney. However, proof issues come into play. It’s relatively easy to prove Mom hit Junior, especially in civil court, where the burden of proof is only a preponderance of the evidence (more likely than not). It’s much more difficult to prove Mom berated Junior.
“Deadbeat” parents, in this context, usually committed abusive acts in a prior relationship. In the co-parenting era, such remote instances of domestic abuse have little bearing on the case at bar. That’s especially true if the parent had a disability, like alcohol abuse, which s/he has corrected.
“Delinquent” parents, once again in this context, abused a non-child family member. In today’s environment, judges often hear evidence about the incident and at least consider it. If the child witnesses domestic abuse, a sole custody order may be appropriate.
“Dangerous” parents are, well, dangerous. In most states, if a parent abused a child, the parent may have little or no contact with that child, at least until the parent completes an anger management class and jumps through a few other hoops. In fact, once again in most states, if a judge doesn’t issue a sole custody order in these cases, the judge must justify this decision in writing.
Voluntary Parental Impairment
Substance abuse issues are the most common kind of voluntary parental impairment. These issues may not be entirely voluntary, but they’re mostly self-inflicted.
Alcohol and drugs impair judgment, so these parents cannot make good decisions about the best interests of the child. Furthermore, these parents often go out at odd hours or are incapacitated at home, leaving children unsupervised. That’s not the only danger. If drugs and alcohol are laying around the house, curious children often experiment with them.
Onset or removal of a voluntary impairment is a common basis for a motion to modify sole custody or other parenting time provisions.
Involuntary Parental Impairment
Brain injuries and other physical or emotional disabilities are tough cases. Frequently, a parent was in a disabling accident, like a work accident or car crash. Other times, the disability is genetic.
A fundamental principle of American law is that people are responsible for the choices they make, not for who they are. Family law is different. If an involuntary disability undercuts the best interests of the child, and the parent is unable or unwilling to make sufficient accommodations, a sole custody order may be appropriate.
Child’s Preference
Technically, children may express a preference to live full-time with Mom or Dad. Age cutoffs apply in some states.
Practically, children don’t do this very often. Most children don’t want to take sides between Mom and Dad. Additionally, the judge may reject the child’s preference, if that preference isn’t in the child’s best interests.
Parental Alienation
This issue is the opposite of parental distance, which is discussed below. In this scenario, which was once called maternal brainwashing, the alienating parent drives a wedge between the child and the targeted parent. PAS moms and dads are not effective co-parents.
Communication Breakdown
If the parents’ relationship is so strained that they cannot effectively communicate, the court may, as a last resort, cut one parent out and order sole legal custody.
Usually, this cutoff isn’t in the child’s best interests. Therefore, in most cases, judges order these parents to work on communication issues, attend counseling, or use a parenting app. However, if it’s clear that communication issues will negatively impact the child, sole legal custody may be the best option.
Violation of Court Orders
We’ll briefly run through the remaining four items on this list, since they come up very infrequently.
Simple failure to pay child support never justifies a sole custody order or a visitation limitation. Tying child support to parent/child contact is like holding the child for ransom. Violating a court order is another matter. The punishment often includes a sole custody order.
Physical Distance
If Dad lives with Junior in Kansas and Mom takes a job in Indonesia, dad cannot effectively consult with Mom about parenting issues and Mom will probably seldom or never see Junior.
Emotional Distance
This factor is more common in custody modification orders. If Junior moves in with Mom and her new husband in Indonesia, Dad may feel emotionally detached from Junior, especially if Junior changes his last name and calls Mom’s new husband “Dad.”
Economic Distress
In a few cases, no amount of child or spousal support enables a parent to provide for a child and give that child roughly the same standard of living s/he had during the marriage.
Frequently Asked Questions About Sole Legal Custody
What are the disadvantages of sole custody?
The disadvantages of sole custody include the non-custodial parent feeling left out or missing significant parts of their child’s life, potentially leading to resentment. It can also be hard on the child if they desire more time with the non-custodial parent. Additionally, the custodial parent may face the overwhelming responsibility of making all decisions and providing for the child’s needs alone.
What is the legal definition of co-parenting?
Co-parenting, also known as shared parenting, is an arrangement where both parents share responsibility for raising their children after a divorce or separation. This includes making decisions about the children’s welfare, education, and health, and often involves a detailed parenting plan approved by the court that outlines each parent’s rights and responsibilities.
What is best for a child of divorced parents?
What’s best for a child of divorced parents is maintaining a stable, loving, and supportive environment. This can be achieved through effective co-parenting, where both parents work together to ensure the child’s needs are met, despite their separation. Keeping conflict away from the child and ensuring they have strong, healthy relationships with both parents are key factors.
Does co-parenting get easier?
Co-parenting can remain challenging and may not necessarily get easier over time. It involves navigating complex emotions, managing logistics, and maintaining communication with an ex-partner, which can be difficult. However, with effort, mutual respect, and focusing on the child’s best interests, co-parents can create a stable and positive environment for their child.
What age is divorce most damaging to a child?
Research indicates that children between the ages of 6 and 12 suffer most from divorce. Elementary-aged children are at an age where they can understand complex topics like divorce but still hold onto good memories, often leading them to question their role in the divorce and potentially causing long-term emotional impacts.
What is poor co-parenting?
Poor co-parenting is characterized by a lack of cooperation, communication, and respect between parents, which can negatively affect the child. It may involve conflict, inconsistency in parenting styles and rules, and an inability to make joint decisions regarding the child’s welfare. This can lead to confusion, stress, and emotional distress for the child.
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