Child Custody
Child custody and visitation are frequently the most hotly contested aspects of a divorce case, as spouses often attempt to use the threat of a child custody battle as a bargaining chip in order to obtain other things that they want. Of course, using your children as a pawn in your divorce is a terrible idea, and as much as possible, you should try to avoid this tactic. In any event, unless your spouse is clearly an unfit parent, or has no interest in child custody, you don't have a lot of room to negotiate the child custody issue.
Custody
There are two principal types of child custody:
Legal Custody
The parent with sole legal custody has the exclusive right to make fundamental decisions about the child's health and welfare, such as education, medical care, religious observance and other fundamental issues. Most courts will award joint legal custody, thereby allowing both parents to have input into these important decisions. If you share legal custody with your spouse, neither of you can prevent the other from providing this input, and if one party violates this rule, the other party can petition the court for an order enforcing the party's right to legal custody.
Physical Custody
Physical custody involves the control over the living arrangements of your children. If you have sole physical custody, you have the exclusive right to live with your child, and your former spouse simply has child visitation rights. If you and your spouse have joint physical custody, this means that your children will divide their time between the two of you, based on a schedule established by the parties and approved by the court. It could involve every other week, summers, or every other weekend. If the parties cannot agree on a schedule, the court (after interviewing the parties, the children, and the appropriate experts) will impose a schedule on the parties.
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Although joint physical custody sounds like an excellent compromise, it has serious drawbacks, and is often not in the best interests of your children. Many children-particularly younger children-do not like to move around; it can be very disruptive to their education, their social relationships, and even their mental health. Also, if the parents are not good at resolving their disputes, joint custody can often cause friction, as the parents will often try to push the envelope by extending their children's stays or refusing to deliver their children at the required times, causing stress for everyone involved. Learn more about the psychological effects of divorce on children here.
In making child custody decisions, the trend among the courts today appears to be to award of joint legal custody to the parties, with sole physical custody to one of the parties and generous visitation rights to the non-custodial parent. However, the courts in every state are authorized to award joint physical custody if they find that it is in the best interests of the child, and in a few states, the law requires the court to award joint physical custody-unless the court finds that joint physical custody is not in the best interests of the child.
In rare instances, where neither party is capable of being an effective parent, the court will refuse to award custody to either parent, and instead will award custody to another family member, or, in extreme cases, to a court-appointed guardian or foster parent.
Factors Governing Child Custody Disputes
If you wish to fight for exclusive physical custody of your children, that is certainly within your right. These are the factors courts typically rely on in deciding child custody disputes:
- The parents' ability to agree, communicate and cooperate in matters relating to the child.
- The parents' willingness to accept custody.
- Any history of unwillingness to allow child visitation not based on substantiated abuse.
- The interaction and relationship of the child with its parents and siblings.
- The history of domestic violence, if any.
- The safety of the child.
- The safety of either parent from physical abuse by the other party.
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child's education.
- The fitness of the parents.
- The geographic proximity of the parents' homes.
- The extent and quality of the time spent with the child prior to or subsequent to the separation.
- The parents' employment responsibilities.
- The age and number of the children.
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Got Child Custody Concerns?
Speaking to a local divorce lawyer is a smart way to not only have any of your child custody concerns addressed but to also learn more about the child custody laws in your state and the factors governing child custody disputes. Simply fill out our divorce case review form or call 1 (877) 349-1310, and we'll help you get in touch with one of our sponsoring divorce lawyers in your area who can answer your child custody questions and help you move forward with confidence rather than uncertainty during your divorce.