Child Custody & Visitation Lawyer, Lawyers, Attorney, Attorneys, Law, Legal Court Cases

What is Child Custody?

Child custody and guardianship are the legal terms used to describe the legal and practical relationship between a parent and child, including e.g. the right of the parent to make decisions for the child and the duty to care for it; it comes into question in proceedings involving dissolution of marriage, annulment and other legal proceedings where the residence and care of children are concerned. In most jurisdictions child custody is determined by the best interests of the child standard.

In many proceedings to dissolve a marriage, issues relating to child custody generate the most acrimonious disputes. It is not uncommon for one parent to accuse the other of trying to turn the child(ren) against him or her, or of disrupting the parent's communication with the child(ren). In extreme cases, parents have taken children out of the jurisdiction, in violation of court orders, so as to frustrate the other parent's custody or visitation rights.

Legal Custody

"Legal custody" gives a parent the right to make long-term decisions about the raising of a child, and key aspects of the child's welfare -- including the child's education, medical care, dental care, and religious instruction. In most child custody cases, legal custody is awarded to both parents (called "joint legal custody"), unless it is shown that one parent is somehow unfit, or is incapable of making decisions about the child's upbringing. Legal custody is different from "physical custody," which involves issues such as where the child will live.

Joint Custody

In child custody situations, "joint custody" usually refers to one of two possible scenarios: joint legal and physical custody, or joint legal custody.

In true "joint custody" arrangements, parents share equal "legal custody" and "physical custody" rights. This means that parents participate equally in making decisions about the child's upbringing and welfare, and split time evenly in having day-to-day care and responsibility for the child -- including the parent's right to have the child live with them. True joint custody arrangements are rare, because of their potential to cause both personal difficulties (stress, disruption of child's routine) and practical problems (scheduling, costs of maintaining two permanent living spaces for the child).

Much more common than true joint custody arrangements (where both physical and legal custody are shared) is "joint legal custody," in which both parents share the right to make long-term decisions about the raising of a child and key aspects of the child's welfare, with physical custody awarded to one parent.

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Divorce Advice: Child Custody and Child Visitation (part 2 of 4)

Child custody is one of the most difficult and emotionally charges aspects of a divorce. There are two primary types of custody, physical custody and legal custody. Physical custody is awarded to parent with whom the child will live a majority of the time. The custodial parent often shares legal custody of the child with the non-custodial parent. Legal custody refers to the right to make decisions about the child's education, religion, health care, and other significant concerns. Some parents settle on a joint-custody arrangement, through which the child spends approximately an equal amount of time with both parents. The following tips offer advice about child custody and child visitation, so that you and your soon to be ex-spouse can handle these difficult issues with the least amount of emotional strain on yourselves and your children as possible.

Tip #1: Focus on your child’s or children’s best interests. This may sound overly simple, but divorce lawyer Peter Paras stresses, “In dealing with the issue of custody, it is important to know that it is the children’s best interests that are the central focus of the court’s concern.” Divorce attorney Bonny Reis agrees, stating, “One of the most important [elements of] good parenting is the ability of a parent to subordinate his or her needs to the needs of the child. Once people begin to understand that and stop seeing the child’s needs through the lens of their own feelings, they become much better parents and much better candidates for custody.” It is essential to keep your negativity toward your former spouse from damaging your child’s relationship with him or her, as well as your child’s perceptions of him or her. When it comes to deciding custody arrangements, courts tend to look favorably on parents who are respectful and cooperative during the divorce proceedings.

Tip #2: There are two ways to resolve the issue of child custody. First, the parents can reach a compromise, thereby recognizing that the children are entitled to know both of their parents and structuring the children’s future in a collaborative manner. Second, in cases where extenuating circumstances make compromise extremely difficult or impossible, a judge will make the custody decision. Peter Paras, an experienced divorce lawyer, points out, “One of the most critical elements in deciding whether or not compromises can be reached or not is how well the parents can communicate and whether the parents have a recognition that the other parent has a right to have a relationship with the children and that the children have a right to have a relationship with both parents.”

Tip #3: Establish a fixed visitation schedule. When a court establishes visitation rights for a noncustodial parent, it usually orders reasonable visitation. In order for the reasonable visitation approach to succeed, both parents must cooperate and communicate frequently. Fixed visitation refers to the establishment of a detailed visitation schedule by the court, including the times and places for visitation with the noncustodial parent. Divorce attorney Bonny Reis favors this approach. “I feel strongly that there has to be a schedule…when you have a schedule as a default, both parents know when they can make time for themselves. To have a schedule shows that the parents respect one another and respect one another’s right to go on with their lives.” Another important beneficial result of fixed schedules is that they provide greater stability for the child. The child will know when to expect spending time with each of his or her parents, leading to healthier, more solid relationships and less tension between family members.

Divorce case involves many different types of issues, including preparing for your divorce, child support, assets and property, and alimony, all of which will be addressed in this series.

For more divorce advice, refer back to Part 1 of this series and look for the upcoming installments:
Part 1: Divorce Advice: Preparing for Your Divorce
Part 3: Divorce Advice: Child Support and Alimony
Part 4: Divorce Advice: Assets and Property Division

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About the Author:

Liz Ryan is a Writing and Content Specialist for Lawyer Central. Visit Lawyer Central's Divorce Resources for legal information about divorce and to find an experienced divorce lawyer. Discuss divorce and related issues on the Law Forum.