Child custody and visitation is one of the most difficult aspects of getting divorced, especially if one parent wants sole legal custody. Couples frequently come to an agreement pertaining to this issue and sometimes the court decides for them. Courts have frequently given mothers physical custody in the past and have given fathers visitation. However, in today's society, courts have begun to realize that in some instances it in the best interest of the children to live with their father.
In order for a court to grant custody, the court must find that the custodian is a fit and proper person and that custody with that person is in the best interest of the children.
Physical custody is the right and obligation of a parent to have his child live with him. Legal custody is the right and obligation to make decisions about a child's upbringing, including school and medical care. Many states usually have parents sharing in legal custody of a child.
Divorcing parents face many options pertaining to the division of these rights and responsibilities. Some solutions are:
- Sole custody - An arrangement in which one parent has both physical and legal custody of a child and the other parent has visitation.
- Split custody - This pertains to a custody arrangement with multiple children involved. One parent will be awarded sole custody of one child while the other parent is awarded sole custody of another child. The courts do not favor this resolution as they are usually reluctant to split up the children.
- Joint custody - An arrangement in which parents who do not reside together share in the upbringing of the children. This can mean joint physical custody where the children spend a significant amount of time with each parent or joint legal custody where the parents share in the decision making pertaining to the children.
If custody is contested, many courts make a decision on a custody arrangement by the best interest of the children, including their age and the closeness to the parent who has been their primary caretaker, the physical capability of the parent as well as their mental health, whether or not there is an issue of domestic violence and, depending on the children's age, what the children's wishes may be and the purpose for their wish.
Visitation is the right to see a child on a regular basis, generally given to the parent who does not have physical custody of the child. Visitation plans should be specific so as to avoid any possible conflicts and avoid confusion.
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Supervised visitation is an alternative used when a child's safety and well-being require visits with the other parent be supervised by you, another adult or a professional agency.
No visitation is an option used in an extreme situation is which contact with the other parent would be detrimental to the child.
Custody and visitation schedules are always subject to change when circumstances affecting the child's best interests change significantly. Once the conflict of custody and a visitation schedule is settled, there are certain policies that must be followed in order to modify the arrangement. If custody and visitation were determined through a court, then the parties will have to return to court in order to modify said arrangement. If the agreement was reached through mediation, the couple may have to return to mediation to modify said arrangement.
Ex parte custody refers to motions, hearings or orders granted on the request of and for the sole benefit of one party only. An ex parte motion mat be used in a case where one parent strongly believes a child is in extreme danger. Many jurisdictions require at least an attempt to contact the other party's attorney of the time and place of an ex pate hearing.
A visitation schedule depends on the child's age and whether there is somewhere for the child to sleep during the overnight visits. A typical arrangement, depending on the child's age, consists of every other weekend usually from Friday through Sunday, one evening each week and every other holiday. However, for a child younger than 6 years of age, it is generally recommended by child development experts that visitation may be scheduled for 2 or 3 days weekly of 2 to 8 hours each visit.
In some instances, a third party seeks visitation with a child, being a step-parent or a grandparent. Laws vary from state to state regarding this issue. Although a grandparent may be a biological grandparent, the court does not always grant visitation. Several factors play a role in the decision making of the court such as:
- The grandparent was abusive to their own child;
- Interference with ordinary parental decision making; or
- Bad-mouthing one or both parents to the child, creating unnecessary conflict.
Seek advice from one of our experienced family law attorneys to assist you with the best interests of both you and your children.