Custody & Visitation

Common Custody Solutions

There are many options regarding the division of these rights and responsibilities between divorcing parents. Some options are available as part of an agreement and some options may be required by court order.

·         Sole Custody: When sole physical custody is awarded or agreed upon, one parent has the exclusive, primary right to have the child live 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. In such instances the non-custodial parent may be limited to restricted or supervised visitation. 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.

·        Joint Custody: In joint custody, parents share responsibility for decision-making and/or for physical control and custody of the children. Couples may agree upon joint custody or the court may order it. Couples with joint physical custody usually share legal custody, but joint legal custody does not necessarily mean joint physical custody.

·         Split Custody: A less popular resolution where each parent takes custody of different children.

·        "Nesting" or "Bird Nesting": Children remain in the pre-divorce family home and parents take turns moving in and out.

·        Shared Parenting: This new concept in child custody has recently been adopted by several states. States that use shared parenting standards replace previous custody and visitation rules with a cooperative, parenting plan-based framework. Shared parenting involves both legal and physical custody. Children may spend equal time with both parents, though there are no pre-set rules as to how parents have to share parenting responsibilities. Parents jointly budget for the children's expenses, and each pay equitably for these expenses.

Custody in the Divorce Process

Questions of custody usually first arise when a divorcing couple with children finally decides to separate. While some couples immediately reach an agreement for either short or long-term custody arrangements, others require court intervention for an intermediate or final decision. Custody is addressed throughout the divorce process in the following procedures:

·        Temporary Hearing: Shortly after the initial papers are filed seeking termination of a marriage, the family court will hold a temporary hearing and then issue an order that controls the relationship of the parties until there is a 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 interest 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. However, depending on the circumstances, the temporary custody order may indicate which parent the court thinks is the more suitable.

·        Custody and Mandatory Mediation: Most states now require parties in a contested divorce to attempt mediation. Mediation is 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 may choose to reach mediated agreements on issues like child custody while keeping other issues like property division open for a judge to decide. Couples who resolve their custody disputes through mediation can include a provision in their final divorce agreement that makes it mandatory to return to 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. A court appointed mental health professional such as a psychologist or a social worker usually does the custody evaluation. The evaluation will include interviews with both parents and the involved children, observation of the children, conversations with teachers and possible psychological testing of both parents and the child. It usually takes four to six weeks to conclude a custody evaluation and courts will usually not enter a final determination without a completed evaluation.

·        Custody Trial: Every state has statutes and procedures for the legal resolution of disputed child custody. While specific statutory 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 interests determination may include review of 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.

Modifications

Once custody has been established either through agreement or court order, parents may seek court involvement to modify the established arrangement if they cannot agree to a change. 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. Additionally, states that follow the Uniform Child Custody Jurisdiction Act will only consider requests for modifications if they occur in the state where a child has an established residence in order to prevent forum shopping and custody motivated child removals. Courts give modification requests motivated by the relocation of one parent special consideration.

Conclusion