An important issue divorcing couples face is the custody of the children. But what does the term “child custody” refer to? Child custody refers to the rights and responsibilities between separated parents in regards to their children.
Here are some important notes about child custody laws.
Types of Custody
There are two types of child custody: legal custody and physical custody.
Legal custody refers to who has the right to make important decisions for the child, such as residence, education, health, and welfare. Legal custody can be either joint or sole. In a joint custody arrangement, both parents share the rights and responsibilities of making important decisions for the child. In a sole custody arrangement, only one parent has the right and responsibility to make the important decisions about the residence, education, health, and welfare of the child.
If separated parents share legal custody, either parent has the right to make these important decisions alone. But in situations in which parents cannot cooperate, the parents wound up going back to court to settle these custody issues.
Physical custody refers to where the child will reside. Physical custody, like legal custody, can be either joint or sole. In a joint physical custody arrangement, the child or children will live with both parents. Sole, or primary, physical custody means the children will live with only one parent while the other parent will get visitation rights to the child. Judges can give parents joint legal custody, but not joint physical custody. Thus, in such situations, both parents can make important decisions for the child, but the child will only live with one parent. The parent the child lives with is called the “primary custodial parent.”
Joint physical custody arrangements do not necessarily mean the child will spend equal time with both parents. Generally, the child will spend a little more time with one parent because of circumstances such as school.
Visitation refers to how the parent without physical custody of the child will spend time with the child. Visitation rights are granted through a court order and will depend on the best interests of the child, the situation of the parents, and other factors the court takes into consideration.
There are four main types of visitation orders: visitation according to a schedule, reasonable visitation, supervised visitation, and no visitation.
With visitations according to a schedule, parents have agreed to a detailed visitation plan, which prevent conflicts and confusion. The schedule details the dates and times the children will spend with each parent, which include holidays, special occasions, and vacations.
Reasonable visitation orders allow separated parents to leave visitation open-ended. This means the parents must cooperate with each other and work out how the children will spend time with each parent. Reasonable visitation orders are best suited for couples who separate amicably, are flexible, and can communicate well with one another.
Supervised visitation orders require the visiting parent to be supervised by the other parent, another adult, or a professional agency. Supervised visitation orders are used when a parent has a violent history or substance abuse problem. In addition, supervised visitation orders are used when a parent has not seen the child in a long time and need time to become more familiar with each other.
No visitation orders are granted by the court when a parent can be physically or emotionally harmful to the children. A no visitation order may be granted by a judge if it is in the best interest of the child.
Best Interest of the Child
The judge must give custody according to the “best interest of the child.” When a judge looks into the best interest of the child, the judge will consider the age of the child, health of the child, emotional ties with the parents, the ability of either parent to care for the child, if either parent has any history of violence or substance abuse, and where the child lives and attends school.
In certain situations, living with either parent would not be in the best interest of the child. In such situations, the court would grant custody of the child to other people who are not the parents. These cases are called guardianships.
For those unfamiliar with the process, child custody is one issue they would just as soon not get involved with. Unfortunately, since divorce brings with it the difficult problems of child custody and other attendant conflicts, people are now needing to learn more about certain aspects of it.
Following are some of the most commonly asked questions from people who are not familiar with the subject. The answers represent responses collected from different child custody attorneys. Certainly, child custody laws are not the same for all states. The following answers are offered in general terms, and to the extent that they apply and/or are recognized by the courts.
What Is Custody?
“Custody” determines who is responsible for the child or children in cases when their parents do not live together. This will apply to couples who are separated, divorced, or who have never been married to each other.
How Does Physical Custody Differ From Legal Custody?
When a parent has physical custody, it refers to a situation in which the child will spend time living with that parent on a regular basis. If custody is “joint physical custody”, then the child is shuttled between the parent’s homes.When a parent has “sole legal custody”, that parent has the sole right to make decisions on the child’s education, health, and overall welfare (schools, doctor, etc). In “joint legal custody” both parents share in making the relevant decisions.
How is a Decision Made?
A judge usually gives his or her approval to a custody plan agreed on by the parents. If the parents cannot agree, they will have to speak with a mediator or counselor to help work out a plan. The judge will make the decision on any disputed issues that both parties are unable to resolve.
Can a Child Still See a Parent Not Awarded Physical Custody?
The court will usually order that the other parent be given generous visitation rights with the child. However, this will be restricted in cases where domestic violence has occurred, or the where parent’s ability to care for the child is in question.
What Happens When A Custodial Parent Obstructs The Child’s Visit To The Other Parent?
The non-custodial parent can ask the court for a “contempt” order. The parent who is denying visitation can receive court sanctions. If it can be proven that it was done intentionally, the non-custodial parent may have grounds to sue to be granted the child’s custody. The judge usually will first require the couple to attempt to work out things with the help of a mediator.
Can A Custody Arrangement Be Altered If It Doesn’t Work?
Parents usually are able to change a custody arrangement that doesn’t work, provided they are able to suggest a new plan, and they then ask the judge to make it official. If the parents continue to disagree, they can ask the judge to decide on the changes. The judge’s decision will be based on the best interests of the child. This can be difficult if the child has been well-cared for, or if the original custody plan has been in place for some time.
Can Anybody Other Than The Parents Have Custody Over A Child?
In California, a judge must consider the parents first, either singly or together. A judge may, however, grant custody to another person (a grandmother, step-parent, or a friend) with or without the parents’ consent. This can occur if the judge believes giving child custody to either parent would be detrimental to the child.