How Are Child Custody and Visitation Established?

If you are going through a divorce and have children, child custody is arguably the most important matter you will have to deal with during the divorce proceedings. Although custody arrangements can be reviewed and modified until the child turns 18, it is very rare for custody to be changed from one parent to the other after the initial order has been established. This is why it is important to understand how custody and visitation (more often referred to as parenting time) will be determined.

There are two types of custody, legal custody and physical custody. The parents may share both legal and physical custody, share legal custody but give one parent sole physical custody, or have one parent have sole primary and physical custody. As you will see below, even when one parent is granted sole custody, the other parent will still retain rights to the child.

Legal Custody
Legal custody relates solely to the decision-making rights regarding the child. A parent can have legal custody of a child without having physical custody. The parent with legal custody will have the authority to make decisions about the child’s medical, religious, and educational needs. If one parent is awarded sole legal custody, that parent has the right to make major decisions about the child without consulting with the other parent. If the parents share legal custody, they must discuss the matter with the each other before making any major decision.

Physical Custody
Physical custody refers to which parent the child will live with. Typically, one parent is awarded physical custody, while the other receives parenting time. Although joint physical custody is an option, it is more typical to see sole physical custody awarded to one parent. Usually, joint custody will only be awarded if the parents agree to this arrangement. It is very rare to see a judge award joint physical custody if the parents have not agreed to it.

Parenting Time
Absent any verifiable concerns about the child’s safety, the parent who does not have physical custody of the child will be awarded parenting time. If the parents do not come to a mutual agreement regarding the parenting time, the court will determine a schedule that it deems to be best for all parties involved. It will look at factors such as the needs of the child(ren), the proximity of the parents’ houses to one another, and each parent’s schedule. The child’s age is also a factor when setting a parenting time schedule. Infants and younger children typically need short, frequent visits, while older children may do better with longer visits.

Best Interest Standard
If the parents cannot agree to a custody agreement or parenting time schedule, the court may order the parents to attend mediation. If this is not successful, the court will be forced to make a decision that it feels is in the best interest of the child. They may do this alone or call for the help of a psychologist or custody evaluator. The court will use the Best Interest Standard to determine an appropriate custody arrangement. The Best Interest Standard looks at the following factors:

1. The wishes of the child’s parent or parents regarding the child’s custody.
2. The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
3. The interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings, and any other person who may significantly affect the child’s best interest.
4. The child’s adjustment to the child’s home, school, and community.
5. The mental and physical health of all individuals involved.
6. The stability of the child’s home environment.
7. The moral fitness of the child’s parents.
8. The willingness and ability of each parent to facilitate a close and continuous parent-child relationship between the child and the other parent.

Sometimes the Probate Court Judge will ask mental health professionals to assist him or her in what is in the best interests of the child. This may include the appointment of a Guardian Ad Litem (GAL) to interview the Father and Mother, the children, other relatives, friends, teachers and other individuals that know the family. The GAL will perform an investigation and report back to the Judge on custody and parenting time issues.

Dealing with child custody issues can often be a very complicated and stressful process. If you have concerns about your custody case, you should consider contacting a family law attorney to make sure your rights are protected. Call our office to schedule a consultation with an attorney experienced with child custody and visitation matters.