Parents who are divorcing have much to consider. Uppermost in their minds is often child custody. Child custody and visitation/parenting time can come in many forms. Joint custody and sole custody; legal custody and physical custody; custody evaluations and modifications: all are terms with which a divorcing parent will become familiar. Knowledgeable advice and skilled representation from an experienced family law attorney can assist you in your pursuit of a fair custody arrangement.
Basic Custody Terms
Custody is split into two parts, physical and legal. The court determines or approves physical and legal custody arrangements for each child.
Physical Custody: The actual living arrangements of the child and the rights and responsibilities associated with daily childcare.
Legal Custody: The right to make decisions about the child’s upbringing concerning education, health care and religion.
Common Custody Solutions
Physical and legal custody can be apportioned in numerous ways.
Sole Custody: When sole physical custody is awarded or agreed upon, one parent has the right to have the child live primarily with him or her. That parent is then known as the custodial parent and the other parent becomes the non-custodial parent. Sole physical and legal custody generally only occurs when there is a history of abuse and neglect, but this varies from state to state. In such instances, the non-custodial parent may be limited to restricted or supervised visitation. Many parents have arrangements consisting of sole physical custody, joint legal custody and a generous visitation schedule for the non-custodial parent.
Joint Custody: In joint custody, parents share responsibility for major decision-making and/or physical control and custody of the children. Parents with joint physical custody usually share legal custody, but joint legal custody does not necessarily imply joint physical custody. Parents need to be able to work together in the rearing of their children when they have joint legal custody.
Split Custody: This is a less popular option, in which each parent takes custody of a different child.
“Bird’s Nest Custody” or “Bird Nesting”: This arrangement allows children to remain in the pre-divorce family home while parents take turns moving in and out.
Custody Determination During the Divorce Process
Questions of custody usually first arise when a divorcing couple with children decides to separate. While some couples immediately reach an agreement on short- or long-term custody, others require court intervention for the intermediate or final decision. Custody may be addressed throughout the divorce process in the following ways:
Temporary Hearing: Shortly after the initial papers are filed a seeking dissolution of a marriage, the family court will hold a temporary hearing and issue an order that controls legal aspects of the parties’ relationship until it grants the final divorce decree. When custody is contested, the order creates a temporary custody solution. Unless there is evidence that doing so would not be in the best interests of the child, temporary custody is typically granted to the person who stays in the marital home. Temporary custody orders should have no bearing on which party will ultimately be awarded permanent custody. Depending on the circumstances, however, the temporary custody order may indicate which parent the court thinks is the more suitable.
Mandatory Mediation: Many states now require that parties in a contested divorce attempt mediation. Mediation is an alternative dispute resolution (ADR) process in which divorcing couples work with a specially trained neutral third party in an attempt to resolve their disagreements. Couples may resolve child custody while keeping other issues like property division open for a judge to decide. Couples who determine custody arrangements through mediation can include a provision in their final divorce agreement making it mandatory to return first to the mediation process to resolve future custody and visitation disputes.
Custody Evaluation: If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. A court-appointed mental health professional such as a psychologist or a social worker usually does the custody evaluation. The evaluation includes interviews with both parents and the children; observation of the children; conversations with teachers; and possibly psychological testing of both parents and children. It can take four to twelve weeks to conclude a custody evaluation. When a custody evaluation has been ordered, the court usually will not enter a final custody determination until the evaluation has been completed.
Trial: Every state has statutes and procedures for the legal resolution of disputed child custody. While specific standards differ from state to state, most courts decide contested custody cases based upon a determination of what arrangement is in the best interests of the child. Considerations that go into a best interest determination may include a review of the child’s age and attachment to the parent who 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.
Once custody has been established by agreement or court order, parents may seek court involvement to modify the established arrangement. To support a modification request, the parent seeking the modification must show a substantial change in circumstances. If the modification request is within two years of the original custody determination, some states will only consider it if the child is endangered by the custody arrangement. Additionally, states that follow the Uniform Child Custody Jurisdiction Act will only consider requests for modification if they occur in the state in which a child has an established residence, in order to prevent forum shopping and custody-motivated child removals.
The resolution of child custody and visitation disputes requires divorcing parents to act rationally in their child’s best interests at a time when they are facing the overwhelming stress of divorce. Early involvement by a family law attorney with knowledge and experience in child custody law can help.