Sometimes, and for all sorts of reasons, personal relationships fail and parents split-up. Married or not, the loss of the relationship is only one aspect the parents have to deal with. There's also the all-important question about what happens to their children.
Decisions on child custody and visitation are often the most difficult, and most important, part of any breakup. So, while it's a good idea for the parents to talk to their lawyers about protecting their and their child's interests, it's also a good idea to understand some of the terms and issues you'll come across when making custody and visitation decisions.
Types of Custody
The terms may vary a little depending on the laws in your area, but in general there are four custody types:
Legal custody is the right and responsibility to make decisions about and for your child. For example, with legal custody, you have the authority to decide whether your child will attend private or public school, your child's religious training, your child's medical care and treatment and how your child is disciplined.
Physical custody is the right to have your child live with you. It also means you have the responsibility of caring for the child's everyday needs. It is possible for a parent to have physical custody but not legal custody.
Sole custody is when only one parent has legal and/or physical custody of a child. Sole legal custody means that only one parent is responsible for making decisions about their child's upbringing. Sole physical custody means that only one parent has the right to have the child live with that parent.
Joint custody is when you and your ex-partner or ex-spouse share legal and/or physical custody. Joint legal custody is when both parents share in child rearing decisions. Joint physical custody is when both parents spend time living with their child.
Joint legal custody might mean:
- Your child lives with each parent for a significant amount of time during the year
- Your child spends weekdays with you and weekends with your ex
- You and the other parent move in and out of the child's home (called "nesting")
Noncustodial Parent Visitation
The parent with sole physical custody usually is called the custodial parent. The other parent is called the noncustodial parent and usually has visitation rights. The parents can agree to visitation terms or the court can decide for them if they can't come to an agreement.
A noncustodial parent usually is allowed visitation without anyone else being present to watch over the child. Sometimes, however, visitation may be supervised, such as when the parent has a history of violent behavior or alcohol or drug abuse, for example. This is when an adult (not the custodial parent) is present during visitation. The supervisor may be court-appointed, or the parents may choose the supervisor with court approval.
All states have laws on grandparent visitation. Laws do vary from state to state, however, and courts are likely to limit grandparent visitation if a parent asks. Grandparents may seek visitation when parents divorce and it's in the child's best interests.
In most states, divorcing parents must have a written plan outlining:
- Where the child will live
- Non-custodial parent visitation
- Who will make parenting decisions and how
- Child's holiday and vacation schedules
- How vacation time is split between the parents
You can work out an agreement on your own, get help from your lawyers or discuss and negotiate a plan through mediation.
When You Can't Agree
When you and the other parent can't reach an agreement on custody, the court will likely make decisions for you based on the children's best interests. Factors in deciding best interests include:
- Who has been the primary care provider for your child
- The parents' mental and physical health
- The child's special needs
- Each parent's work schedule and availability
- Where any siblings will live
- The parents' support systems (family and friends, etc.)
- Your child's custody preference
- Any history of domestic violence between the parents
Your relationship with your spouse or partner may be over, but your relationship with your child is lifelong. Whether it's custody or visitation, your child needs and deserves to have contact with you both. As parents, you owe it to yourselves and your child to make sure you're a part of your child's life after the divorce or breakup.
Questions for Your Attorney
- Must I have a parenting agreement? What items are required in my state?
- If my spouse and I agree on a custody arrangement, does the court need to approve it?
- What will happen if my spouse and I can't agree on a custody arrangement? Will my divorce take longer and cost more?
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