- Types of Custody
- How Is Custody Decided?
Because a child custody decision is such an important one that requires a thorough and nuanced approach, learning about the process of resolving a child custody case as well as the different custody options available may help divorcing parents come to a custody agreement more amicably – whether they choose to bring in a mediator, negotiate with the help of separate attorneys or come to a mutual agreement on their own.
The resources that follow explore the different types of child custody as well as the different factors that play into the court’s custody decision, and they also provide guidance about issues like out-of-state moves and interstate custody matters, visitation schedules and seeking a modification to the custody order.
With child custody arrangements as with countless other matters of life, one size does not fit all. Each family has its own dynamics, needs and resources, so several different child custody arrangements exist to accommodate each unique situation.
Physical custody refers primarily to the living arrangement itself: That is, with which parent will the children reside most of the time? If they will be living with one parent, that parent likely has sole physical custody even if the other parent has visitation or very limited custody rights. In a sole custody situation, the children may live with their mother, for example, but visit their father’s home every Sunday afternoon. The parent with sole physical custody is referred to as the custodial parent.
Joint physical custody refers to an arrangement in which the children reside with each parent for a substantial period of time – three days out of the week, for instance, or every other week or month – depending on the custody agreement, which will in turn be based on considerations such as both parents’ work schedules and the proximity of both individuals’ residences to the children’s school. Joint physical custody is considered most practical when both parents live near each other; otherwise, moving from one parent’s home to the other can prove disruptive to the children’s schedules and cause undue strain. In cases in which the parents live in different states, the court will almost certainly award sole physical custody to one parent.
While physical custody is fairly straightforward, legal custody can be a bit more complicated as it can be more difficult to enforce or work out. Legal custody, which refers to the legal right to make certain decisions about the children’s upbringing, is commonly awarded to both parents in many states even if one parent has sole physical custody, which entails that both parents will have to communicate and cooperate in making parenting decisions. These decisions could concern:
- Where the children will go to school
- Religious upbringing, if applicable, including involvement with a place of worship
- Where and how the children will receive routine and emergency medical care
- Whether the children will receive other special services such as counseling, music lessons or academic tutoring
In many cases, it may be easier for the custodial parent to make day-to-day decisions while consulting the non-custodial parent in regard to decisions with a potentially substantial impact on the children’s lives — like enrolling them in a private school versus a public one, for instance, even if both parents share legal custody. Judges may award sole legal custody to the custodial parent in cases in which both parents live far apart or one parent is abusive, neglectful or largely uninvolved in the children’s lives.
A joint legal custody order may have to be enforced by the judge when one of the parents violates the order by deliberately excluding the other parent from the decision-making process and making unilateral decisions intended to spite the other rather than benefit the children. If parenting decisions become a recurring source of contention, the judge may modify the court order to give one parent sole legal custody or designate one parent the ultimate decision-maker. In the latter case, both are still encouraged to consult each other about parenting decisions even if one of them has the final say.
Sole Physical and Legal Custody
Many courts prefer some form of joint custody – physical, legal or both – since it fosters an environment of cooperation between both parents and allows the children to maintain relationships with both in some way, but in some cases, the judge will deem it most practical or even necessary to award sole physical and legal custody to one parent. This will typically occur in extreme cases, such as when one parent is abusive or has substance abuse problems and is deemed unfit to care for the children or make decisions on their behalf.
Joint Custody: Advantages, Disadvantages and Special Situations
Weighing the advantages and disadvantages of joint custody arrangements could help divorcing spouses decide if such an arrangement is right for their situation. Joint physical and legal custody situations tend to work well if the parents have an amicable relationship, and they prevent the burdens and expenses of parenting from resting squarely on the shoulders of one parent, ideally fostering a healthy co-parenting relationship. However, if the parents harbor any ill will toward each other and talk negatively about each other or squabble constantly over parenting decisions, this could be very damaging to the children as they may feel confused and conflicted. In addition, both parents must maintain households and schedules that can accommodate children – in addition to paying for food, educational materials, health care and other expenses as well as transporting the children back and forth, their homes must be large enough for the children to stay in during their allotted time in the custody agreement.
The notion of co-parenting is gaining momentum both in and out of the courts and has given rise to some unique joint custody arrangements that seek to displace the children as little as possible and allow both parents to continue functioning as cooperative parents while leading separate lives. One of these unique scenarios is the “bird’s nest” co-parenting arrangement, in which the children reside in the marital home, or “nest,” and the parents alternate residence. As either a semi-permanent or temporary arrangement, its purpose is to provide a stable environment for children who can develop attachments to their surroundings and minimize disruption in their routines while they adjust to the divorce.
Ideally, child custody is something that is worked out between the parents. However, things don’t always work that way. Even when they do, arriving at the ultimate decision can involve a long, drawn-out process.
Determining Custody Out of Court
It tends to be easier and less stressful to come to an agreement about child custody out of court. In many states, in fact, divorcing couples are required to attempt to do so before taking child custody matters to court.
While attempting to come to decisions regarding child custody out of court, parents usually have guidance of some kind. Whether the guidance comes from a mediator, an arbitrator, a counselor, an attorney or some other professional, it is used to help move the process along and to ensure that the child’s best interests are kept in mind at all times.
If an agreement is successfully reached between the parents, it is presented to the judge who is handling the divorce case. As long as the judge signs off on the agreement, the child custody decision is then included in the final divorce decree.
Determining Child Custody in Court
When mediation, arbitration or other attempts to settle the matter out of court fail, or if such options are never on the table to begin with, child custody is typically determined by a family court judge. In child custody matters, family court judges tend to follow certain principles, procedures and considerations when making their determinations.
Determining Factors in Child Custody Cases
The Primary Caregiver Standard
In arbitration, mediation and court, a lot of weight is given to the parent who is deemed to have been the primary caregiver or caretaker during the course of the marriage or relationship. Many psychologists believe that the bond that is established between a child and his or her primary caretaker must be maintained to ensure the child’s ongoing mental well-being as he or she moves into adulthood, and this standard is commonly followed in most courts.
Many times, it’s clear who the primary caregiver has been. The primary caretaker is the person who handled the majority of the care-taking responsibilities, which typically include the feeding, dressing and grooming of the child; making arrangements for extracurricular activities; helping with homework and teaching reading, writing, math and other subjects; making health care arrangements and attending parent-teacher conferences, open houses and other school-related events. At times, even seemingly irrelevant factors may be taken into consideration, such as a child’s exposure to second-hand smoke.
If it is not immediately apparent who could be considered the primary caregiver, a checklist may be used by the judge or mediator to come to a determination. The checklist may include items such as whether each parent made doctors appointments for the child, whether each parent took the children to the park and even whether each parent washed the child’s hair.
Determining Custody with Unmarried Couples
When a couple never married but is trying to work out child custody, the mother is usually awarded sole physical custody by default. It is then up to the father to seek joint physical custody or to otherwise make changes regarding custody and visitation. The process of determining child custody for unmarried couples is roughly the same as the one for married couples, but there is no divorce to work out, so the matter is often settled a lot more quickly.
Determining a Child’s Best Interests
The primary goal of judges, mediators, arbitrators and, hopefully, parents is to arrive at a child custody agreement that’s designed with the child’s best interests in mind. Factors that are used to determine a child’s best interests typically include:
- Sex and age of the child
- Physical and mental health of the parents
- If old enough, the wishes of the child
- Cultural and/or religious considerations
- Maintenance of a stable home environment
- Excessive use of discipline or emotional abuse by either parent
- Adjustment to community and school
- Relationships with other members of the household
- Opportunity for continued interaction with the extended families of both parents
Child Custody Evaluations
When parents are unable to come to a custody agreement through mediation or other out-of-court means, a child custody evaluation may be ordered. An evaluator is assigned to prepare and present the ensuing report, which includes his or her recommendations and is given to both parents and the family court judge. To prepare the report, the evaluator may interview both parents and the child multiple times; spend time observing each parent with the child; gather information from doctors, coaches, teachers and other important people in the child’s life and even order psychological testing of the parents and the child. The final recommendation, which is included in the evaluation, is not binding. It is merely used by the judge to arrive at the best possible custody arrangement.
While child custody matters most commonly involve the biological parents of the child, people other than the parents are sometimes considered as well. Sometimes called “third-party” custody, non-parental custody in some states may consist solely of guardianship of the child rather than actual custody.
The person attempting to gain non-parental custody must first fill out a non-parental custody petition with the court, detailing the individual’s relationship to the child and the whereabouts of the parents, whether they are alive, deceased or if their location is unknown. If the biological parents are alive and their whereabouts are known, the petition will likely be send to them as well.
The person seeking non-parental custody can be anyone, including aunts, uncles or close family friends. However, non-parental custody issues most commonly involve grandparents, and there are laws on the books in many states regarding the visitation and/or custody rights of grandparents.
Grandparents and Visitation
If one or both parents are estranged from their own parents, they may refuse to allow the grandparents to see the child. In most states, grandparents can then seek to obtain visitation rights for their grandchild. Court proceedings may also begin if the child has lived with his or her grandparents for some time and the parents’ divorce could potentially affect that arrangement. In a very small minority of states, visitation for grandparents is only considered if at least one parent is deceased. In most cases, grandparents must prove to the court that visitation is in the best interests of the child.
Grandparents and Child Custody
As with child custody cases involving divorcing and non-married couples, the best interests of the child are a top concern when grandparents attempt to obtain custody. Common considerations include the grandparents’ and parents’ ability to properly care for the child; the wishes of the parents and grandparents; the wishes of the child, if he or she is of age; the strength and length of the relationship between the child and the grandparents; the distance between the child, the parents and the grandparents and any evidence of neglect or abuse on the part of the parents or grandparents. Generally, the grandparents must be able to prove the parents of the child unfit in some way in order to gain custody of the child. Typically, however, it is very difficult for grandparents to gain child custody against the wishes of the child’s biological parents.
Child visitation is a critical consideration for divorcing parents. Ideally, a visitation schedule for the non-custodial parent should be incorporated in a parenting plan. For the parents, a set schedule provides clear guidelines that help them avoid the conflicts that arise from misunderstandings. For children, a regular and reliable schedule for seeing the non-custodial parent removes some of the uncertainty that a divorce creates in their daily lives.
Types of Child Visitation
When children visit a non-custodial parent under normal circumstances, no supervision is necessary. The parent is free to interact with the children at his or her home or take them on outings. The right to unsupervised visitation depends upon the parent’s ability to responsibly care for the children during their time together. Unsupervised visitation is restricted only by the days and times specified in the parenting plan.
When the children’s safety is in question, a judge orders supervised visitation. A third party must be present during scheduled visits as a protective measure. Sometimes the court allows the visiting parent to select a supervisor, such as a relative or family friend. In other cases, the supervisor is a court-sanctioned social worker or other trained professional.
Virtual visitation is a relatively recent addition to the types of visitation available to non-custodial parents. It is an option for parents who live too far from their children to make in-person visits. During a virtual visit, the children may video chat with the parent or take part in an instant message conversation.
Factors that Affect Child Visitation
The court’s most important consideration in approving a visitation plan is the well-being of the children. The judge considers whether the schedule is age appropriate. For example, extended visits away from home for an infant who is still nursing would be a hardship for mother and child. The court also takes into account a child’s mental and physical health in evaluating a visitation schedule.
The parents’ living situation is another area of concern in determining a viable visitation plan. For instance, someone living in a studio apartment may not be able to accommodate overnight visits. Factors such as a non-custodial parent’s addiction to drugs or alcohol, a history of abuse or other relevant issues are likely to result in a judge ordering supervised visits for the safety of the children.
Over the years following a divorce, changes in circumstances are inevitable, making adjustments in child support necessary. Parents may move out of town, or older children may wish to make a change. Whatever the reason, modifying a child custody plan after a divorce is not unusual.
Modification Without Legal Action
Divorced parents can change their custody plan without going to court. All it takes is a verbal agreement and cooperation. However, unless each party is absolutely certain that the other will adhere to the new agreement, bypassing legal action in any custody change may not be the best decision. It sets a worrisome precedent, suggesting that the original court orders are no longer relevant and sanctioning non-compliance.
Making Legal Modifications
When parents do not agree on modifications to their child custody orders, seeking the help of the court is their best strategy. If the modifications are beneficial for the children, a judge is likely to approve them.
One of the most common reasons to seek custody adjustments is a change in circumstances. For example, if one parent must move out of the area for work, changes in the parenting plan, such as longer visits with the non-custodial parent, are logical and likely to be approved. Some states require the custodial parent to give written notice of an intended move to the other parent within a specific time period. This gives the parent the opportunity to file a formal objection in court.
If changes in the custodial parent’s lifestyle are putting the children’s safety at risk, the other parent can apply to a judge to alter the custody arrangement. Similarly, if the non-custodial parent begins showing signs of potentially dangerous behavior, such as addiction, the custodial parent can go to court to obtain an alteration in the visitation schedule.
Insisting on legal arbitration also protects parents from unwanted alterations in custody. Rather than be coerced by the other parent into modifying a parenting plan that is working well, the custodial parent has the right to refuse changes unless the other party goes to court. There, the responsibility for making a fair decision resides with the judge.
If one of the children feels strongly about altering his or her current living arrangements, obtaining legal sanction is a good idea. If the child is old enough to make an informed decision and the parents agree to the custody modification, getting legal approval helps facilitate the change.
Out-of-state moves or other interstate issues that come into play can complicate things further. Without having an agreement in place, the non-custodial parent may object to the relocation of the custodial parent due to concerns about how the move will affect existing visitation and custody arrangements. The matter then must be settled in court.
Custody Determinations and the Uniform Child Custody and Enforcement Act
The Full Faith and Credit Clause of the U.S. Constitution states that judges must enforce judgments that have been made by courts in other states. In child custody matters, judges often disregarded this clause and issued entirely new judgments, which created a lot of confusion concerning matters of child custody and visitation. The Uniform Child Custody and Enforcement Act, which sets standards for making determinations regarding child custody, was implemented to simplify matters. With the exception of Vermont and Massachusetts, this act is in place in all states and Washington, DC.
In order to make decisions regarding child custody, a state court must meet at least one of the following criteria:
- The state is the child’s home state – The child must either have lived in the state for the previous six months or longer or was living there prior to being removed by his or her parent.
- The child has strong connections in the state – For instance, his or her grandparents and other extended family members may live there.
- The child was moved to the state due to safety concerns – Concerns regarding abuse, neglect or other safety issues prompted the relocation to the current state.
- No other state can meet any of these criteria.
Even if the child resides in the state, the state court can’t issue a custody determination without being able to meet one of these criteria. If more than one state can satisfy the requirements, only one is allowed to issue a determination. The judgment of the first state court is generally binding.
Child Custody and Relocation
Laws regarding child custody and the out-of-state relocation of the custodial parent vary by state, but most state courts use the following factors while making determinations:
- Express Consent – There is an agreement in place in the child custody plan expressly permitting or not permitting the custodial parent to move out of state.
- Notice and Consent – The custodial parent must give written notice to the other within a specific period of time, and the other parent must give consent or file an objection.
- Good Faith/Burden of Proof – The court sometimes requires the custodial parent to provide good reasons for the move, which may include having a job offer in place, being able to enjoy an improved cost of living, being able to live closer to extended family or to further his or her education. Simply wanting to be far away from the ex-spouse is considered to be in bad faith and may result in a refusal by the court.
- Distance – In some states, the distance of the move may affect whether or not it is allowed.
- Travel Costs, Visitation and Modification of Custody
Depending on the circumstances, the court may decide that a modification of child custody is in order. For instance, joint custody may no longer be practical. As for visitation, the relocating custodial parent is often required to come up with a schedule that outlines times and places for when the child will be with the non-custodial parent. Finally, the resulting costs due to increased travel may be split equally between the ex-spouses. In some states, however, the moving parent is required to handle the majority of the costs.
Child-related matters can be of paramount importance in a divorce. When a family has to alter its internal structure and spouses have to learn how to share parenting time, uncertainty and tension can result. Whether a judge awards joint custody or sole custody, each situation has its challenges. When parents can work with one another for the sake of the children, the quality of the family dynamic can improve.
Each state has different laws regarding child custody. While guidelines differ between states, a commonality among all courtrooms is that rulings are based on the best interests of the children. With so many complex issues to consider, parents can help make the process easier for the children by agreeing on all divorce issues.
To obtain further information on child custody determinations, contact an experienced divorce attorney.