Child Custody

One of the most difficult aspects of divorce is negotiating child custody. Although custody negotiations are stressful and difficult, you should keep in mind that what matters most is what’s best for your child. Here is some practical information and advice about child custody.

Kinds of Custody
There are two kinds of custody. Legal custody refers to decision-making power concerning the child’s general upbringing, religious education, medical treatment, education, and so forth. Parents usually have shared legal custody, although in rare cases one parent may have sole legal custody. Physical custody, on the other hand, refers to the placement of the child, or where the child will live. Physical custody is usually given to one parent, but in some cases parents share joint physical custody of the child.

Joint custody is usually considered to be in the best interest of the child, except in cases where one parent cannot provide a safe, healthy environment. These cases include parents who have been physically, sexually, or emotionally abusive and those who have substance-abuse problems, serious mental illness, or physical illness that prevents them from taking care of a child.

The Legal Process
If you and your (soon to be) ex-spouse cannot agree on a custody plan, you will need to bring your case to a third party. If you want to avoid litigation, you should consider using mediation to decide your custody case. Mediation is highly preferable to court litigation because it is less expensive and less hostile. Your child may be better off if you and your ex-spouse are able to negotiate an agreement without a protracted and angry court battle. (See Mediation and Mediators.)

If mediation is not the right option for you, then you will need to bring your case before the court. Be sure that you have retained a competent lawyer who will effectively represent your custody claim (See Lawyers-Overview and Guidelines.)

If your case goes before a court, the first step will probably be to obtain a temporary order for custody and placement, pending a court evaluation. Although temporary orders are not intended to be permanently binding, you should be cautious about giving up placement of your child if you hope to eventually obtain custody. Courts tend to decide in favor of the parent who already has placement, especially if the child seems to be well-adjusted in the current living situation. Therefore, you should be aware that to give up placement, even temporarily, may result in the loss of permanent physical custody.

In order to make a final determination of custody, the court may conduct an evaluation. This evaluation will generally include psychological tests, interviews, and consultations with attorneys. Before a psychological evaluation begins, you must give your written consent, and you should expect the financial arrangements for the evaluation to be agreed upon beforehand. Usually, the parents will share the cost of this evaluation, although sometimes both the court and the parents pay.

In some particularly difficult cases, the judge may appoint a guardian to represent the child. This guardian will talk to the child and parents and make recommendations to the court.

The court will take many factors into account before making a final determination of custody. These factors include your financial ability and emotional ability to care for your child. In the past, physical custody was most often granted to the mother, but today this is changing as more and more fathers act as primary caregivers. In cases where an older child is involved, courts will sometimes take the child’s wishes into account.

You may already know that the court will not grant custody to parents who have substance-dependency problems or who have been found to be abusive. You should also be aware that a judge is not likely to award custody to a parent who is unwilling to abide by the court’s judgments, who has attempted to use the child to get back at the ex-spouse, who refuses to communicate with the ex-spouse about the child’s welfare, or who has sought to prevent a relationship between the child and the other parent. With this in mind, you should take care never to use your child in an attempt to hurt or get back at your ex-spouse.

In cases of joint physical custody, the judge will usually require a detailed custody plan to be agreed upon which spells out the times and dates when each parent will have the child. You should not expect that each parent will have exactly the same amount of time with the child; accommodations must be made so that the child has stability during the school week and academic year.

Visitation Rights
If one parent has physical custody, the other parent will have the right to scheduled visitations. In some cases, especially where abuse has occurred, these visits may be supervised. Supervised visits include highly structured meetings conducted with the help of a trained professional, such as a therapist. In some cases the visits are less formally structured, and they may be supervised by a family member such as a grandparent, aunt, or uncle. Children may also have scheduled visitations with grandparents, as every state recognizes some kind of visitation rights for grandparents.

The courts very rarely terminate visitation rights, and legally, you have few grounds for refusing them. You are not entitled to withhold visitation because of a failure to pay child support, and conversely, your ex-spouse is not entitled to withhold support because of a lack of visitation. You do not have the legal right to cancel visitation because of a dispute between parents.

Because the court almost always grants a right of visitation, and because you are not legally entitled to refuse visitation except in a few very rare cases (for example, if the visiting parent appears to be under the influence of alcohol or drugs,) it is in the best interest of your child to accept the reality of these visits. You should do your best to make sure that visitation, especially the transfer of the child, goes smoothly for all. Below is some practical information to help you handle visits and shared custody.

Practical Details of Shared Custody Or Visitation
As part of your custody plan, you should decide how you want to handle the transfer of the child, communication about the child, holidays, and changes to the schedule.

In some cases it is best to arrange to pick up or drop off your child in a public place. This is appropriate in cases where a former spouse may become angry or abusive or when ex-spouses cannot be together without arguing. Of course, displays of anger will be harmful and frightening to your child whether they take place in public or private, so make sure to avoiding fighting in front of your child.

You and your ex-spouse should decide at the outset how you want to handle communication regarding your child, whether by phone, in writing, or in person. You should not depend on your child to carry messages back and forth. Not only does this practice place a large burden on the child, but it may also result in unreliable or inaccurate information.

Many divorced parents experience problems when negotiating custody for holidays. When you develop your custody plan, you will need to spell out the details of how you will handle holidays, making sure that each parent has equal time with the child. Be willing to be flexible in order to accomplish this. For example, you might consider celebrating two Thanksgivings so that the child can spend one with each parent. Or, each parent might plan to spend half a day with the child on special holidays.

Once the schedule is established, you should maintain it with consistency. Your child will need routine and stability after the divorce, and frequent changes to the routine will be confusing and overwhelming. Of course, at times you will need to be flexible because occasional changes are inevitable. You should be willing to make reasonable adjustments to the schedule from time to time, keeping in mind that if you refuse to make any changes in order to punish your ex-spouse, you will ultimately be punishing your child.

If you are willing to be flexible, you may be able to work out an agreement with your ex-spouse that works to the advantage of both parents. For example, if the custodial parent is overwhelmed with the day-to-day responsibilities such as car pooling, errands, and feeding the child, the ex-spouse may be able to share in these responsibilities. You may ask your ex-spouse to baby sit during the times when you can’t be with your child. Sharing responsibilities in this way can be beneficial to both parents, as it allows one parent with more visitation time and relieves the other parent of some of the stress of single parenting. Another option for a non-custodial parent who wishes to spend more time with the child would be to take part in the child’s extracurricular activities, by coaching a sports team or leading a scout troop.

Long-Distance Custody Arrangements
Custody arrangements are more complicated when parents live in different cities. Younger children may need more frequent visits with the non-placement parent, if this is financially possible. Overnight and long stays will be more difficult for young children, particularly toddlers. If at all possible, overnight stays for infants should be kept to a minimum. Parents should share the burden and cost of traveling for visitations. Visitation agreements should be worked out so that the non-placement parent has the opportunity to see the child at least once a month, if at all possible. Summer vacations and most school vacations should be spent primarily with the parent who does not have physical custody.

Changes to Custody Orders
Your custody agreement is not set in stone. If your circumstances change significantly, you can go back to the court and ask that the judge consider changing the custody order.