Updated: 2020-06-23 by
If you’re confused about the different types of child custody and how they work, you’re not alone. Here, we’ll demystify some of the basic terms and concepts you need to know when you’re trying to create a good parenting plan, focusing on what it means to share custody of your kids.
To start, let’s look at the two basic legal elements of child custody: physical custody and legal custody.
Physical custody is all about where your children live. You and your children’s other parent may share physical custody or just one of you may get physical custody. The legal term for sharing is joint physical custody. If the kids live with just one parent, that’s called sole physical custody.
The law presumes it’s best for kids to have ongoing contact with both parents. That means judges like to order joint physical custody unless there’s a strong reason not to do so -- for example, because one parent lives far away, is abusive, or has a history of being unreliable or unavailable for the kids. Remember that the focus is always on what’s best for the kids.
Legal custody covers pretty much everything that physical custody does not, including decisions about the children’s religious training, choice of schools and tutors, extracurricular activities, medical treatment, mental health care, and more.
As with physical custody, legal custody may be shared (called joint legal custody) or not (sole legal custody). Also like physical custody, judges favor shared legal custody so that both parents can continue to make important decisions for their children. Judges usually grant shared legal custody unless there’s a good reason to give legal custody to just one parent.
Other Names for Custody and Visitation
You may sometimes hear child custody called by other names, including "parental rights and responsibilities" or "residential responsibility." Custody and/or visitation are often called "parenting time" to keep the focus on the children.
How Does 50-50 Custody Work?
An even division of custody looks simple on paper—each parent has the kids half time and shares in all important decisions—but life rarely works out so easily. In the real world, parents share custody in many different ways. Here are just a few examples:
- Parents may live close enough and get along well enough to keep two fully functioning homes for the kids, allowing them to share 50-50 physical and legal custody in a practical way.
- Parents may get along well enough to share physical and legal custody but find that the constant physical and logistical transitions are too stressful for the family; in that case, sole physical custody with a liberal visitation schedule may be a good option.
- Parents may agree to joint legal custody yet find that, practically speaking, one of them takes most of the responsibility for day-to-day decisions, especially if that parent spends a lot more time with the kids.
TIP: Think twice before letting go of physical custody. If keeping physical custody of your children is important to you, make a case for it right from the start. A parent who has sole physical custody may have stronger rights when it comes to moving away with the kids. If you’re worried your ex may get sole physical custody and then try to move, you should talk with a lawyer to be sure your custody agreement addresses your concerns.
Here are some resources that can help you imagine different time-sharing arrangements:
Here are free parenting plans from more than a dozen states to help you explore different options.
In addition, the following books can help:
- Nolo’s Essential Guide to Child Custody & Support, by Emily Doskow (Nolo)
- Building a Parenting Agreement That Works: Child Custody Agreements Step by Step, by Mimi L. Zimmerman (Nolo)
- Two Homes, One Childhood: A Parenting Plan to Last a Lifetime, by Robert E. Emery, Ph.D (Avery).
To learn more about the standard Montana judges consider when awarding custody, see How Courts Make Custody Decisions in Montana.
To find your local court, see the McCone County family law court page.
You may also be interested in:
Understand the common factors Montana’s judges use when making child custody decisions.
The IRS usually gives the most tax benefits to the custodial parent. But there are ways to change the default rule.
Answers to common questions about Montana custody enforcement, including whether police will enforce a custody order.