Divorces often lead to marriage dissolution. This is the process when divorce couples come together to negotiate how things will be split up between the two of them. The process can be done by presenting the court with a signed “marital settlement”. Things included in the settlement may include issues such as the allocating property established during the marriage, division of joint financial accounts, alimony, and child support. However, for families with children, one of the most important things in a settlement is child custody. This article will talk about what is child custody as well as talking about the different types of custody available.
What is Physical Child Custody?
A divorce settlement is all about splitting things between spouses. Oftentimes, this might make people think about properties like a house or a car, but what about children? How do you divide a child?
Child custody is the assignment of guardianship between the two parents after a divorce. The guardianship of the child will include the rights and responsibility each parent has in caring for their children. It also addresses matters like visitation, or how much time each parent will spend with their children. There are two kinds of child custody, legal custody, and physical custody.
Legal custody refers to the responsibility a parent has for making decisions about major things in a child’s life such as;
- Which school the child will attend
- Religious activities or institutions
- Medical care
- Where the child will live
There are mainly 2 ways to arrange legal custody;
Joint custody is when both parents share the same rights and responsibilities on important matters. Parents that share legal custody may both have the right to make important decisions for their child, but it also means they are entitled to individually make decisions as well. To preserve parental decisions in the same way as it would be in a marriage, most states have a default preference for parents to share legal custody.
Sole custody only involves one parent having the right and responsibility to make decisions on important matters. This option can resolve conflicts that may be present in joint custody. For instance, sometimes parents cannot agree on where the child should receive medical care. Simple conflicts like these could result in perpetual fights that can make co-parent hard. In such cases, the judge will grant sole custody as a solution to the conflict. Sole custody may also be granted for other reasons such as one parent lives far away, is neglectful, or simply doesn’t have enough time to spend with the child.
Additionally, another solution to joint custody is that a judge may designate one parent to have the final decision-making authority. This solution is somewhat similar to sole custody, but it provides more chances for parents to try and come together in an agreement.
Physical Child Custody
Simply put, physical custody is who the child lives with. Similar to legal custody, there are a couple of ways to arrange physical custody. The court may grant physical custody to both or one parent. Physical custody is a very important part of child custody because it may significantly affect things later on. For instance, in some states, parents with sole physical custody are entitled to relocate with the child anywhere. This can seem unfair to the non-custodial parent. When matters like this arise, the non-custodial parent must resolve the dispute in court by proving that relocating may have adverse effects on the child. Like any court procedure, it can be time-consuming and stressful, therefore parents should carefully consult an attorney regarding the options for obtaining physical custody.
Available Arrangements For Child Custody
Divorces can result in a strain in relationships and oftentimes leave long-lasting impacts on children. In attempts to preserve the family as much as possible, the courts in many states prefer to order joint physical custody. Physical joint custody assures that the child has an opportunity to spend time with both parents equally. Further, some states may require parents who disagree with the order of joint custody to provide evidence supporting that belief. Although the goal of joint custody is to promote equal time spent with children, it is often not a 50-50 time split. Joint custody may seem ideal, but the transition between parents often creates opportunities for conflict to arise. For example, for joint custody to function, certain factors are required;
- Both parents live near each other, and
- Both parents get along and do not have a strained relationship
If one parent spends most of the time with the child they will likely be granted sole physical custody. To ensure the child has the opportunity to spend time with the other parent, “visitation” or “parenting time” will be arranged for the non-custodial parent. For example, a father with sole physical custody may be with the child every day of the week, while visitation will be arranged for the child to see their mother on weekends. There are four main types of visitation orders:
Visitation according to a schedule
Visitation according to a schedule helps establish clear and set out dates marked on the calendar for both parents. When planning a timeshare, this will prevent any conflicts or clashes of any upcoming important dates such as birthdays, vacations, father’s day, and holidays.
Unlike visitation according to a schedule, reasonable visitation does not explicitly mark an exact date for when a child will be spending time with each parent. Oftentimes, reasonable visitations are more flexible. This type of visitation typically requires the parent to have a good relationship and clear communication.
A supervised visitation is an available option for a child with parents who might be abusive or held in a facility. Usually, this order aims to protect the safety and well-being of a child by having the other parent or agency provide supervision during the visit. This type of visitation may also be used in situations where the parent and the child are not that familiar with each other and haven’t seen each other in a long time.
No visitation is an order made for parents who might be physically or emotionally harmful to the child.
How Are Custody and Visitation Determined?
Custody and visitation are determined by the court and in accordance with the “best interest” of a child. Factors determining the “best interest” may include the child’s;
- Relationship between the child and parent
- Parent’s competency in caring for the child
- The parent’s history and records of family violence, substance abuse, or criminal convictions
- ties to the school, home in his or her community
The right to custody and visitation of a parent may not be denied on the grounds of marital status, physical disability, religious belief, sexual orientation, or lifestyle. Additionally, in most cases, child custody and child support come hand in hand. Child support is a court order and cannot be used as a condition to visitation rights. For example, a parent cannot deny the rights of the other parent to see their child because they refuse to pay for child support. Vice versa, a parent cannot stop paying child support as retaliation because the other parent denies visitation.
Typically child custody will be given to both or either parent. However, in some cases, a “guardianship” or someone else other than the parents may be granted custodial rights if the court determines that neither parents are competent and will not serve in the best interest of the child.
How Can I Get Custody and Visitation Orders?
It is possible for parents to get custody and visitation orders without a court order by arranging agreements on their own terms. An agreement made between the parents will become binding and enforceable. However, if one parent violates the agreement terms, the court will not be able to enforce it until it has become a court order. In that case, the parent must turn in the agreement to a judge. The judge will review and sign the agreement upon approval. Once the agreement is approved, the agreement becomes a court order where the parent can then file it to a court clerk. Other ways a judge may choose to resolve a dispute in the agreement include;
- Assigning the parents to mediation and a mediator from family court
- Appointing a child custody evaluator to recommend a parenting plan
- Appoint lawyers for children (the judge will determine which parent will be responsible for the child’s lawyer costs)
Changes can always be made to the agreement terms by either parent. However, the parent who wishes to change the agreement must file forms addressing the reasons for the request of change to the court. Additionally, both parents will also be required to consult with a mediator about why the court order needs to be changed.
Contact Pride Legal
If you or a loved one has been looking to gain child custody, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.