When parents divorce, it is important to learn about the child custody and visitation options that are available and the legal standards that apply. In many cases, divorcing couples can ultimately agree on custody and visitation issues without the need for a court order. When an agreement cannot be reached, knowledgeable advice and representation from a family law attorney can often make the difference.
The duty to provide day-to-day care of a child and the right to direct the child's daily activities is known legally as physical custody. Legal custody means the rights and responsibilities associated with decisions regarding the child's upbringing.
Many options regarding the division of custody rights and responsibilities between divorcing parents exist. More and more, courts are encouraging parents to continue working together to raise their children even after their marriage has ended. Custody arrangements commonly include the following:
- Sole Custody. Sole physical custody occurs when one parent retains the exclusive, primary right to have the child live with him or her. Sole legal custody occurs when one parent has the exclusive right to control the child's upbringing. The most common type of sole custody is sole physical custody with joint legal custody and a generous visitation schedule for the non-custodial parent. When one parent ends up with the primary responsibility for the couple's children, the other parent, known as the non-custodial parent, usually has a right to maintain contact with the children through ongoing visitation.
- Joint Custody. In joint custody, parents share responsibility for decision-making, for physical control and custody of the children, or for both.
- Split Custody. Split custody is a less popular resolution where each parent takes custody of different children.
- Shared Parenting. Shared parenting is a relatively new concept in child custody that has been adopted in several states. In shared parenting, children usually spend equal amounts of time with each parent and the parents share legal and physical custody.
Determination of Custody and Visitation
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor both long-term and short-term custody arrangements agreed to by parents. When couples can't agree, procedures exist throughout the divorce process to resolve custody conflicts. Common procedures used to resolve custody issues include:
- Temporary Hearings. The family court holds a temporary hearing shortly after the initial papers are filed. If custody is contested at this point, the court will issue an order deciding custody that will be in effect until the court enters its final divorce decree.
- Custody and Mandatory Mediation. Most states now require parties in a contested divorce to attempt mediation. Mediation is a form of alternative dispute resolution in which divorcing couples work with a specially trained neutral third party to resolve some or all of their disagreements. Couples who resolve their custody disputes through mediation can include a provision in their final divorce decree making mediation mandatory to resolve future custody and visitation disputes.
- Custody Evaluations. If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. The custody evaluation is made by an outside expert on whose assistance the court will rely in ordering a child custody arrangement that is in the best interests of the child.
- Custody Trials. Every state has statutes and procedures for the legal resolution of disputed child custody. Most courts decide contested custody cases based upon a determination of what arrangement is in the best interests of the child. Factors considered in determining custody arrangements include the child's age, the child's attachment to the parent who has been the primary caretaker, the physical and mental health of each parent, the existence of domestic violence, and the child's wishes.
Modification of Custody and Visitation
Once the issues of custody and visitation have been resolved, either by the court or the by agreement of the parents, specific procedures must be followed to change the arrangement. If the parents reached their agreement through mediation, they may have to go back to mediation to make any modifications. If custody was established by a court order the parents must typically petition the court to make any modifications. In order to support a request for a change to a custody or visitation arrangement, the parent seeking the modification must show a substantial change in circumstances. Some courts will only consider a request for modification within a certain number of years after the original custody determination, but courts will almost always consider a request for modification if there is a showing that the child is endangered by the current custody arrangement. Some states place residency limitations on requests to prevent parents from shopping for friendly rulings in different states.
The resolution of child custody and visitation disputes requires parents to act rationally and in their child's best interests at a time when they are facing the overwhelming stress of divorce. Advice from a family law attorney will help you to understand your options and make a plan that will serve the best interests of you and your children.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.