Although it may seem impossible, divorcing parents can work together to decide what type of custody will work best for their family. Parents know their own situation better than a judge, so if they can set aside any hard feelings and cooperate to come up with a workable custody arrangement, they can have complete control over their own parenting plans. If they can’t agree, a judge will have to decide physical custody, legal custody, and parenting time.
What Is Custody?
Legal custody refers to a parent’s right to make major decisions regarding the child’s general welfare, including the child’s religious upbringing, education, major medical decisions, and extra-curricular activities.
The court may award two types of legal custody:
- sole, to one parent, or
- joint, to both parents.
Sole legal custody is less common if both parents are involved in the child’s life. Courts may favor sole custody for one parent if the other parent has been abusive, is addicted to drugs or alcohol, or absent in the child’s life.
Joint legal custody means that both parents have an equal right to make major decisions in their child’s life. In order for joint custody to work, parents must be able to have some sort of communication and respect for each other. If parents try, but can’t agree on a specific issue, they can ask the court for help.
Physical custody—called physical placement— 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 (shared physical placement.) Unless parents agree or prove that it is best for the child, Rhode Island courts limit awards of joint physical custody.
Rarely, courts may award split physical placement. If a family has more than one child, the court may find it beneficial that one child lives with each parent, separately. Courts only award split physical custody in rare circumstances.
What Is Parenting Time?
If a court awards one parent primary physical custody, the next step is to determine a parenting time (visitation) schedule for the noncustodial parent and child. A judge must give the noncustodial parent reasonable rights to visitation, unless the court finds that it isn’t in the child’s best interest.
Parents should work together to determine the ideal parenting time schedule for everyone, especially the children. When creating a calendar for your family, you should consider:
- the child’s school and extra-curricular schedule
- each parent’s employment schedule
- whether midweek visitation will benefit the child
- weekend visitation, holidays, and school breaks, and
- which parent will be responsible for transportation costs related to visitation.
If a court denies parenting time for any reason, a judge may require the parent to attend counseling, or if domestic violence is involved, the abusive parent may need to complete a certified batter’s intervention program.
The court must complete an annual review to revisit the parenting time denial. During this re-evaluation, the court will determine whether:
- the noncustodial parent has taken any action to rehabilitate themselves, and
- whether the denial of parenting time is in the child’s best interest.
Although noncustodial parents have less physical time with their children, they continue to have the right to make day-to-day decisions about their children while they are in their care.
How Does the Court Determine Custody?
Parents who work together to decide custody and parenting time are less likely to ask the court to change it later. Courts prefer and encourage parents to work together, and often provide tools—like counseling, or education—to families who want to agree. Sometimes courts will offer a process called child custody mediation, where parents can meet with a neutral third-party to help them make a mutual decision about custody.
If parents can’t agree, a court will decide custody based on the best interests of the child. During a custody hearing, the judge will consider:
- each parent’s wishes
- the child’s preference, if the child is old enough to understand and express an opinion
- the child’s interaction and relationship with each parent, siblings, and other family members
- the child’s adjustment to their home, school, and community
- the parent’s mental and physical health
- the stability of the child’s environment
- each parent’s moral fitness, and
- whether each parent is willing to facilitate a close and continuous parent-child relationship between the child and the other parent.
The judge will decide custody based on the evidence presented by each parent. Parents (or their attorneys) can submit e-mails, social media posts, and testimony from doctors, family, or friends.
Once the court makes its decision and orders a specific and final parenting plan, both parents must follow it precisely. If either parent wants to change the arrangement later, they will need to ask the court for a modification hearing.
Modification of Custody and Visitation
Life does not stand still after the judge signs a court order, so parenting plans may change over time. But requests to modify custody are not taken lightly, since courts wish to create stability for children. If a parent wants the court to change custody or parenting time, that parent will need to prove that there has been a substantial change of circumstances since the last court order.
A change of circumstances must be substantial and it must impact the child’s life. It’s not enough to show the court that a parent has a new job or home. There are no specific definitions of a change of circumstances, and a judge has broad discretion to alter custody arrangements. However, some common examples of a change in circumstances that may support a custody modification include:
- the child’s grades have declined
- a parent has been abusive to the child
- domestic violence has occurred, and/or
- the other parent has stopped seeing the child.
Parents shouldn’t navigate complex custody issues alone—if you're seeking a new custody order, or you wish to modify an existing order, contact a family law attorney in your area.