Among the difficult questions facing separating or divorcing parents are who will have custody of the children and what visitation rights will be given to the spouse without custody. Here are some basics about child custody and visitation rights that can help resolve these questions.
Child Custody
Child custody decisions are made by a judge. But if the parents agree on who gets custody, the judge usually accepts their choice. If the parents cannot agree, the judge decides. The judge bases his or her decision on what’s best for the child and considers many factors, including the child’s age, the home environment of each parent, the child’s health, safety and welfare, any history of domestic violence or abuse, any history of substance abuse, and which arrangement will provide the best and most contact with the parents. In the case of older children, judges can also often take into consideration the child’s preference.
There are several different types of custody arrangements. The main forms are:
• Sole custody. In this traditional custody arrangement, one parent is designated as custodian, both legally and physically. The child lives with the designated parent, who makes all parental decisions regarding the child’s health, education and welfare (though the other parent may have some input on some decisions).
• Joint legal custody and sole physical custody. Joint legal custody means both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare. This arrangement works better when the parents are on cordial terms. In many joint legal custody arrangements, one parent has sole physical custody.
• Full joint custody. In this arrangement, the separating parents are equal partners in raising the child. This also works better if the parents are on cordial terms. Under joint physical custody arrangements, the child usually spends approximately the same amount of time with each parent.
Variations on these arrangements can be agreed on by the parents or ordered by the court.
In the past, many states required custody of young children to always go to the mother. Most states now do not follow this rule, but instead ask if it is in the child’s best interests to give custody to the mother or the father.
Changing custody arrangements. At some point after the divorce, one or both of the parents may want to change the child custody arrangement. Changes agreed to by both parents are usually accepted by the court. If the parents cannot agree, the parent seeking the change can ask a judge to make it. Generally, he or she must show there has been a significant change in circumstances and that the proposed new arrangement is in the child’s best interests. A significant change of circumstances is usually shown by something negative — for example, that the home environment of the custodial parent has changed significantly for the worse or that the child is not being properly supervised.
In some states, if the request to change the custody arrangement is made within a certain period of time after the custody order (typically a year or two), there must be a showing that the child is endangered by the current custody arrangement. After this time period, just a showing of a significant change in circumstances is required.
Visitation Rights
When one parent is awarded sole physical custody, the other usually gets visitation rights. If the parents cannot agree on visitation privileges, a judge decides for them. Visitation rights typically consist of one or two weekends a month, each parent having the child for some of the major holidays, and several weeks or a month during the summer.
To deny the other parent visitation rights, the parent with custody must have a valid reason. If the parent with custody thinks the other parent’s conduct will be bad for the child or place the child in danger, he or she can ask the court to stop all visitation or to require that a third person be present at all visitations.
Sometimes when a parent is behind on child support, the custodial parent will deny visitation. This should not be done, as visitation and support are separate issues. Denying visitation under these circumstances could be a violation of a court order and result in losing custody as well as cause harm to the child. Legal help should be obtained when a parent is behind on paying child support, as there are many legal avenues available to collect it.
Child Support
Both parents have a legal duty to provide for the financial support of their child. This is true even if the parents were never married or did not live together. This obligation begins when the child is born.
Child support is money paid by the parents to meet their financial obligations. A court may order one or both parents to make payments to cover a child’s living and other expenses. A support order will also usually require the parent to pay for the child’s health insurance.
The amount of child support is set by the court, usually under guidelines developed by the state. Some states give judges wide leeway in setting the amount, while others do not. Most states’ guidelines specify factors to consider in determining the amount of support. These include the amount of the parents’ income and the expenses needed to raise the child.
Child support lasts until the child becomes an adult (depending on the state, the age of 18 or 21), or for the length of time specified in the court’s child support order. It could state other events when the support ends earlier.
As with most matters involving divorce and separation, child custody, child support and visitation present difficult issues. Our law firm has a significant amount of experience in these matters and can help you resolve these issues. We can also help you enforce or modify existing child custody, support and visitation arrangements.
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