Child Custody & Visitation

CHILD CUSTODY AND VISITATION is one of the most important and therefore most contested matters in family law. There are two types of custody: Legal and Physical. Legal custody is the right to make decisions about the child such as medical care and school attendance. Physical custody concerns where the child’s primary residence is.

Parents can have sole custody or joint custody shared with the other parent. Either parent can be awarded sole custody.

Often parents will already have some kind of custody or visitation schedule in place. If necessary, a judge can make a temporary order regarding custody and visitation during the divorce. When making a schedule, you should consider both the present and future needs of the child. It is also important to consider the current relationship between the child and the parents. You should always encourage a relationship between the child and the other parent unless it is inappropriate due to domestic violence, abuse or addiction.

A judge will make the final decision regarding custody and visitation. Either the judge will approve the schedule agreed to or there will be a court hearing. The judge will consider the “best interests” of the child when making a decision about custody and visitation.

Some factors the judge uses in deciding the “best interests” of the child:

  • The child’s gender, age, physical, and mental health
  • If a child is 12 years of age or older, his or her wishes may be considered
  • The child’s established schedule
  • How changing the current living situation might impact the child
  • Both parents’ physical and mental health
  • Each parent’s lifestyle
  • Any history of child or sexual abuse
  • The emotional connection between each parent and the child
  • Each parent’s ability to provide for the child
  • Both parents’ ability and willingness to foster contact and healthy communications between the child and the other parent

Factors not considered are:

  • Payment of child support
  • One parent moving out of the family residence or city
  • Sexual orientation and religious beliefs

Each of these factors carry different weight. There are additional factors the judge may consider as well.

If the court believes that one parent could be a danger to the child, the court can award supervised visitation, where the visit between the parent and the child is supervised by a third party, not the other custodial parent.

When making a decision regarding a modification of child custody and visitation, the judge uses the best interest of the child standard again to see if a change is appropriate.