Child Custody & Visitation

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.

What is Visitation?

In family law, visitation is an American term for what is called access in Canada and in at least several European countries.

Generally speaking, visitation or access is a privilege granted to a non-custodial parent. It is usually considered a privilege for the parent. Standard visitation in most states consists of alternating week-ends and some holidays.

As a matter of routine in family court before a judge, fathers are awarded, in the United States, four days a month visitation to see their children. If the mother allows, parenting time may increase.

However, if the child, at or around the age of 13, depending on the state, the child may choose which parent's home to live without government interference.

A fathers' rights and men's rights movement is set to change this arrangement to equal, 50/50 shared parenting. For example, leadership is shown from groups like Fathers 4 Justice, American Coalition for Fathers and Children (ACFC), Alliance for Non-Custodial Parents Rights (ANCPR), and National Congress for Fathers and Children (NCFC). Bob Geldof, of Boom Town Rats, Band Aid, and Live Aid fame, leads the movement in the United Kingtom with Parents 4 Protest and The Sun's Justice 4 Dads campaign.

Visitation is an archaic term that is gradually being replaced with parenting time. There is a growing reform movement in the United States to eliminate the concept of custody and replace it with the presumption of 50-50 parenting time, thus treating the father and mother as equal parents of the child(ren).

Parents (and in some jurisdictions grand-parents) frequently believe that they have a right to visitation or access; however, courts in several countries have used the subjective doctrine of the best interests of the child to deny parental or grandparental access to the child(ren). This is commonly found in cases when custody of the child(ren) is disputed and there is a history of interferrence with visitation. In such high conflict cases, there are often allegation of child abuse and/or domestic violence.

In high conflict cases, visitation may be supervised by a social worker, psychologist, guardian ad litem, or other third party while the non-custodial parent visits with the child.

Many noncustodial parents have visitation orders that allow the child to visit with them without any supervision. These visits often take place away from the custodial residence. Often the non-custodial parent is granted overnight visitation, weekend visitation, or vacation visitation.

Parents may also share custody and may agree to allow visitation. In these situations a court order may not be needed, though sometimes it is obtained to forstall later disputes about what the parents had previously agreed to, and to allow the courts to have some oversight over the children (which they normally have under statute and under the parens patriae power).

A recent legal and political trend has developed in the United States, the United Kingdom, and other Western countries, known as 50-50 parenting. Under this system, there is no legal determination of custody and the rights of both parents to equal time with their child(ren) (and vice versa) are protected.

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