When parents divorce, they need to learn the child custody and visitation options that are available to them and the legal standards applied to the different options. In most cases, divorcing couples are ultimately able to agree on custody and visitation issues without the need for a court order. When an agreement cannot be reached, knowledgeable advice and representation from an experienced family law attorney often makes all the difference.
The set of parental responsibilities regarding day-to-day care of the child as well as the rights 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.
There are many options regarding the division of these rights and responsibilities between divorcing parents. More and more, courts are encouraging parents to continue working together to raise their children even after their marriage has ended. Common custody solutions include:
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 is the exclusive right to control the child’s upbringing. The most common type of sole custody currently occurring is sole physical custody with joint legal custody and a generous visitation schedule for the non-custodial parent. When one parent ends up with primary responsibility for the couple’s children, the other parent (known as the non-custodial parent) usually has rights to maintain contact with the children through ongoing visitation.
Joint Custody: In joint custody, parents share responsibility for decision-making and/or for physical control and custody of the children.
Split Custody: A less popular resolution where each parent takes custody of different children.
Shared Parenting: This new concept in child custody has recently been adopted by several states. In shared parenting, children usually spend equal amounts of time with both parents and parents share legal and physical custody.
Determining Custody and Visitation
Divorcing couples often tackle custody and visitation issues as soon as they separate. Courts generally honor both the long and short-term custody arrangements of parents when they reach agreements about their children. When couples can’t agree, procedures exist throughout the divorce process to resolve custody conflicts.
Temporary Hearing: 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, an alternative dispute resolution process where divorcing couples work with a specially trained neutral third party to try and resolve some or all of their disagreements. Couples who resolve their custody disputes through mediation can include a provision in their final divorce agreement that makes it mandatory to return, as a means of resolving 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 by an outside expert for assistance in reaching a determination regarding what arrangement is in the best interests of the child.
Custody Trial: 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 which includes a review of such things as the child’s age and attachment to the parent that has been the primary caretaker, parental physical and mental health, any history of domestic violence and the child’s wishes depending upon the age of the child and the motivation for the preference.
Changing Custody and Visitation
Once custody and schedule of visitation has been reached, either by the court or the couple, usually specific procedures must be followed in order to change the arrangement. If couples have reached an agreement through mediation, they may have to go back to mediation in order to make any modifications. Custody established through court order requires additional court involvement. In order to support a request for a change the parent seeking the modification must show a substantial change in circumstances. Some states will only consider a request for modification within two years of an original custody determination if there is a showing that the child is endangered by the ordered custody arrangement and 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 separating parents to act rationally in their child’s best interests at a time when they are facing the overwhelming stress of divorce. Advice from an experienced family law attorney will help you understand the options available to you in your particular situation and make a plan that will serve the best interests of you and your children.
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