Child Custody & Visitation
Child custody and visitation rights are often central issues in divorce cases, primarily because there is usually no fair solution and very little room to negotiate these matters. In most cases, it is difficult to argue that a parent is unfit unless there are obvious apparent issues, like substance abuse or mental illness. In fact, "unfit" is an issue that rarely enters into a modern custody case; the typical standard is "the best interests of the child." Even the threat of a child custody battle can be intimidating, since popular dramatization of divorce cases in television and film has created the conception that every case may be extreme in its consequences and hostility. Below you will find many important facts that will try to offer a more realistic picture of your child custody case.
- What is legal custody?
- What is physical custody?
- The truth about joint custody
- Visitation rights
- Forfeit or restriction of visitation rights
- Visitation for caretakers other than parents
- Important issues concerning a custody dispute
What is legal custody?
If legal custody is granted to one parent, he or she has the exclusive right to make decisions about the health and wellbeing of the child, on such lifestyle factors as education, medical care, religious observance and other fundamental issues. In many cases, joint legal custody is awarded, which means that both parents will have input into these important decisions. If the court grants joint legal custody, and one parent tries to interfere with the other parent's right to make decisions for the child, the court may decide to enforce that parent's legal right to custody.
In rare instances, where neither party is capable of being an effective parent, the court will refuse to award custody to either parent, and instead will award custody to another family member, or, in extreme cases, to a court-appointed guardian or foster parent. Depending upon specific state law, those actions may require separate court proceedings.
What is physical custody?
Physical custody is often the sticking point for most custody battles: it involves the control over the living arrangements of the child or children. If one parent has sole physical custody, that parent has the exclusive right to live with their child, and the other parent will have only visitation rights. If parents have joint physical custody, the children will split their time between both parents, determined by a schedule agreed upon by both parents and the court. Sometimes these schedules are split more evenly to include every other week, but often they include only summers or weekends, or combinations of these. If the parents are unable to determine an arrangement that suits both parties, the court will impose a schedule after interviewing the parents, children and any other relevant experts. Many custody courts require custody counseling or mediation.
The truth about joint custody
Joint physical custody certainly sounds like an excellent compromise, but you should be warned that it may have serious drawbacks, and some courts generally deem it to be not in the best interests of your children. Many children-particularly younger children-find a split-living arrangement to be destabilizing, and experts agree that it may be disruptive to their education, their social relationships, and even their mental health. Also, joint custody may potentially heighten unresolved disputes and marital conflict, as parents often try to push the envelope by extending their children's stays or refusing to deliver their children at the required times, causing stress for everyone involved.
The trend among the courts today appears to be to award of joint legal custody to the parties, with sole physical custody to one of the parties and generous visitation rights to the non-custodial parent. However, the courts in every state are authorized to award joint physical custody if they find that it is in the best interests of the child, and a few states require the court to award joint physical custody in all cases, unless it is clearly not in the best interests of the child. The general rule in your state, and even the perspective of the judge in your case, will heavily impact this determination. A local divorce lawyer can help you understand the factors that will determine shared versus sole physical custody in your case.
Visitation rights
The parent without physical custody will generally be granted generous visitation rights according to the visitation schedule determined by both parents and approved by the court. In some states or even individual counties, there is a presumption in favor of a specific standard visitation schedule set forth by law or court rule. It is usually the case that courts do not take into account any relative fault of the parents when determining visitation rights, unless that factor would affect the safety or welfare of the child.
Forfeit or restriction of visitation rights
Despite the generosity usually afforded non-custodial parents for visitation rights, a parent can forfeit or limit their visitation privileges with misconduct. If the court determines that your spouse poses a threat of harm to your children, is abusive or irresponsible, you can petition the court to limit your spouse's visitation rights, to require a third-party to supervise all visits, or in extreme cases, to deny all visitation rights. The court can also impose conditions on continuing visitation rights if, such as requiring alcohol or drug addiction treatment in cases where the spouse might require it. The courts typically have broad discretion in crafting appropriate visitation provisions.
On the other hand, the parent with custody is also subject to penalties for misconduct, such as delaying or hindering visits by the other spouse. In the face of misconduct, the non-custodial spouse can seek a court order in order to force the spouse to comply with the visitation order and to pay penalties, costs and attorneys fees. In extreme cases, obstruction with a parent's custody or visitation rights (if the custodial parent took the child or children out of state to prevent the other parent from seeing them) can result in jail.
Visitation for caretakers other than parents
A recent trend throughout state courts is to grant visitation rights to family members, such as grandparents, foster parents or step parents, as well as to parents. Currently, all 50 states have some form of grandparent and caretaker visitation rights law.
A local family law attorney can explain the current state of third-party visitation rights in your state.
Important issues concerning a custody dispute
It is certainly your right as a parent to fight for sole custody of your child, and if you choose to do so, there are many factors to consider that are decisive in child custody hearings. Some of the most common are:
- The parents' ability to agree, communicate and cooperate in matters relating to the child.
- The parents' willingness to accept custody.
- Any history of unwillingness to allow visitation not based on substantiated abuse.
- The interaction and relationship of the child with its parents and siblings.
- The history of domestic violence, if any.
- The safety of the child.
- The safety of either parent from physical abuse by the other party.
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child's education.
- The fitness of the parents.
- The geographic proximity of the parents' homes.
- The extent and quality of the time spent with the child prior to or subsequent to the separation.
- The parents' employment responsibilities.
- The age and number of the children.
A divorce attorney can answer questions about your specific situation!
The state law section of our website is a great resource if you have questions about any part of the child visitation and custody laws in your state. However, it is always best to speak directly to a divorce attorney about your specific situation or other important issues like child support, property division and alimony. Fill out our easy-to-use divorce case review or call 1 (877) 349-1310, and we'll help you schedule a consultation with an experienced divorce attorney in your area.