When parents decide to divorce, often one of the most difficult decisions involves custody of the children. Parents usually know what’s best for their children, so courts encourage families to create the best parenting plan for their situation. If parents can’t agree, a judge will decide issues of custody and visitation based on what’s best for the child.
What Is Custody?
Parents with legal custody have the right to make decisions regarding their child’s education, health, and general welfare, such as:
- where the child will live
- whether the child will practice a certain religion
- educational plans and where the child will go to school, and
- major medical decisions, like whether the child will have surgery or get braces.
A judge may award sole legal custody or shared legal custody. In Ohio, the court will order shared custody if both parents jointly request it, which means both parents will have a right to take part in decisions on major issues that impact significant parts of the child’s life. If parents simply can’t agree after trying to work out their differences on a child-related issue, they will need to ask the court for help deciding.
If the court awards one parent sole legal custody, that parent can make all major decisions about the child’s welfare without consulting the other parent. An award of sole legal custody is rare, and generally only happens in cases where there has been a history of domestic violence, drug or alcohol abuse, or an absent parent.
Physical custody generally refers to the parent’s time with the child and includes where the child will live and which parent will be responsible for the child’s daily needs. Like legal custody, the court can award sole or joint physical custody.
If a judge awards one parent sole physical custody, the parent is given the primary parental rights and responsibilities for the care of the child. The court refers to this parent as the residential parent.
An award of shared custody generally means that each parent will share nearly equal time with the child, and be responsible for the child’s daily needs. The court may allocate specific responsibilities to each parent and may designate one parent’s home as the child’s primary residence.
How Does a Court Decide Shared Custody?
If either parent asks the court for shared custody, the court is required to evaluate whether it would be in the child’s best interest. Shared custody won’t work if parents can’t communicate, or work together to achieve the best life for their child, so it’s best for parents to agree.
In addition to a proving that shared parenting is best using a specific set of shared parenting factors, the parent requesting shared custody must present parenting plan that allows each parent to have frequent and continuing contact with the child. A shared parenting plan may include:
- who will make decisions for the child (legal custody)
- where the child will reside (physical custody)
- when the child will visit each parent (visitation schedule), and
- how parents will settle disputes.
If both parents make the request for shared custody, the court will evaluate their joint plan. If the court doesn’t approve all aspects of the plan, the court may ask the parents to make changes. Similarly, if only one parent makes the request, the court may approve or deny that parent's plan or ask for changes.
In deciding shared parenting, a judge will consider:
- each parent’s ability to cooperate and make joint decisions
- each parent’s ability to encourage the child to share love, affection, and contact with their other parent
- any history of—or potential for—child abuse, spousal abuse, or other domestic violence
- any history of parental kidnapping
- the geographical proximity of the parents’ homes, and
- the recommendation of a guardian ad litem (advocate for the child), if the child has a guardian.
What Is Visitation?
If a court awards one parent sole physical custody, the next step is to determine a visitation schedule for the noncustodial parent and the child. Parents should work together to determine a schedule that will work best for everyone, especially the child. The court can order a minimum parenting time schedule (which varies by county) but encourages parents to add more visitation if it works for the family. When creating a calendar for your family, together, you should consider:
- holidays and school breaks
- mid-week and weekend visitation
- who will provide clothing during visitation
- whether any parent will have telephone visitation, and
- whether both parents should have access to the child’s medical and school records.
If parents can’t agree, the court will need to determine the best parenting time schedule. To do this, a judge will consider a specific set of factors, which include:
- the parent and child’s prior relationship
- geographical location of each parent’s home
- child’s and parents’ available time, including each parent’s employment schedules and vacation schedules
- the child’s age
- the child’s adjustment to their home and school
- the child’s health and safety
- the amount of time available for the child to spend with siblings
- the parent’s mental and physical health
- each parent’s willingness to reschedule missing parenting time
- whether each parent has a history of child abuse, and
- whether the residential parent has willfully denied the other parent their parenting time.
How Does the Court Determine Custody?
Courts recommend and prefer that parents work together to determine their ideal custody arrangements. Like visitation schedules, parents usually have a good sense of what works for their family, so deciding on a plan together is ideal.
If parents can’t agree, a judge will evaluate custody based on the child’s best interest. The court will consider each parent’s character, past conduct, earning ability, and financial worth, as well as the following factors:
- each parent’s wishes for custody
- the child’s preference, if the court interviewed the child and obtained the child's opinion about custody
- the child’s interaction with each parent and siblings
- the child’s home, school, and community record
- each parent’s mental and physical health
- which parent would be more likely to honor and facilitate court-approved parenting time
- whether either parent has failed to pay child support
- if either parent has a criminal record, including sexual abuse
- whether the residential parent has continuously and willfully denied the other parent’s right to parenting time, and
- whether either parent has established a residence outside of the state.
Once the court enters a final custody order, both parents must follow it precisely. If either parent wants to modify custody later, that parent needs to prove that a change is in the child’s best interest and the harm likely to be caused by a change in custody is outweighed by the advantages of the change of environment to the child.