CHILD CUSTODY & VISITATION PROCEEDINGS
When parents divorce, it is necessary to learn about the child custody and visitation options that are available, as well as the legal standards that apply. Obviously, the best-case scenario is where the divorcing couple can ultimately agree on custody and visitation without the need for a court order. When the couple cannot reach an agreement, though, sound advice and representation from an experienced family law attorney will usually make the difference.
The duty to provide day-to-day care of a child and the right to direct the child’s daily activities is known legally as "physical custody." "Legal custody," on the other hand, is defined as the rights and responsibilities associated with those decisions pertaining to the child’s upbringing.
Many options regarding the division of custody rights and responsibilities between divorcing parents are available. It seems that the trend of the courts has been to encourage divorcing parents to continue working together to raise the children born of their marriage. Custody arrangements typically include the following:
- Sole Custody. Sole "physical" custody occurs when one parent retains the exclusive, right to have the child primarily reside with him or her. Sole "legal" custody happens when one parent has the exclusive right to control the major decisions (i.e. medical, school, etc.) in the child’s life. The most common type of sole custody is sole physical custody with joint legal custody and a generous visitation schedule for the non-custodial parent. When one parent ends up with the primary responsibility for the divorced couple’s children, the non-custodial parent usually has a right to maintain contact with the children through ongoing visitation.
- Joint Custody. In this arrangement, parents share responsibility for decision-making, physical control/custody of the children, or both.
- Split Custody. This arrangement is a much less popular resolution where each parent takes custody of different children.
- Shared Parenting. Shared parenting is a relatively new concept in child custody that has been used in several states. In this arrangement, children usually spend equal amounts of time with each parent, and the parents share legal and physical custody.
When couples cannot reach an amicable resolution, procedures are available throughout the divorce process to resolve custody conflicts. Common procedures used to resolve these conflicts include the following:
- Temporary Hearings. Family courts hold temporary hearings shortly after the initial papers are filed. If custody is contested at that point, the court will issue an order deciding custody that will be in effect until the court enters its final divorce decree. This temporary arrangement is commonly referred as pendente lite custody.
- Custody & Mandatory Mediation. Mediation is a form of alternative dispute resolution in which divorcing couples work with a specially trained, neutral third-party to resolve some or all of their disagreements. Couples who resolve their custody disputes through mediation can include a provision in their final divorce decree making mediation mandatory to resolve future custody and visitation disputes.
- Custody Evaluations. If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. This evaluation is made by an outside expert on whose opinion the court will rely in ordering a child custody arrangement that is in the best interests of the child.
- Custody Trials. Most courts decide contested custody cases based upon a determination of which arrangement is in the best interests of the child. Factors considered in determining custody arrangements include the child’s age, the child’s attachment to the parent who is the primary caregiver, the physical and mental health of each parent, the existence of domestic violence, and the child’s wishes.
Once the issues of custody and visitation have been resolved, specific procedures must be followed to formally alter or modify the arrangement. If the parents agreed to the arrangement through mediation, they are normally obligated to return to mediation for any proposed modifications. If custody was established through a court order, the parents must petition the court for any modifications. To support his or her request for a change in the custody arrangement, they must be able to demonstrate a substantial change in circumstances to the court.
Effective resolution of child custody and visitation disputes requires parents to act not only reasonably and responsibly, but also in their child’s best interests at what is usually one of the most difficult times in a person’s life. If you have found yourself in this situation, please contact The Davis Law Firm, LLC without delay, so that we can help you understand your options and devise a plan that will advance the best interests of you and your children.
