When parents separate, they need to decide who will make decisions about their child’s care, where the child will live and when each parent can spend time with the child.
If parents can agree on a custody and visitation (parenting time) arrangement, they can put it in writing and submit the agreement for the court’s approval. If approved and signed by the judge, the custody and visitation arrangement becomes a court order, which both parents must follow.
When parents cannot agree, either parent may request orders regarding child custody and visitation through a court hearing. Before the hearing, the parents will be required to attend a court-ordered mediation (where a mediator will meet with both parents to assist them in identifying and resolving the issues). Attorneys are not permitted to participate in the court’s scheduled mediation.
If mediation is successful and the parents are able to reach an agreement regarding custody and visitation, the court will sign the agreement, which becomes a court order. The court will accept a full agreement on all child custody and visitation issues and even a partial agreement.
If mediation is unsuccessful, the court will make custody and visitation orders for the parents at a hearing based on the best interest of the child. To make a determination on the best interest of the child, the court will consider the following factors:
- Age of the child
- Health, safety and welfare of the child
- The nature and amount of contact each parent has with the child
- Emotional ties between the parents and the child
- A child’s ties to his or her school, home and community
- The child’s wishes (depending on the child’s age)
- Each parent’s ability to care for the child
- Whether either parent has any history of domestic violence or substance abuse
- Whether either parent has a habit of drug and/or alcohol abuse
If a parent seeks changes to the custody and visitation orders after a judgment is entered, as opposed to pre-judgment, there are additional the factors the court takes into consideration.
(If the mother and father were not married at the time their child was born, the court cannot make any custody or visitation order until paternity is established. For more information regarding establishing paternity, please click here.)
Child custody is divided into two concepts: legal custody and physical custody.
Legal custody is defined as the parent who makes important decisions or choices regarding the health, education and welfare of the child, such as:
- Extracurricular activities
- Doctor, dentist, orthodontist, or other health professional (except in emergency situations)
- Psychiatric, psychological, or other mental health counseling/therapy
- Religious activities or institutions
When only one parent has this right and responsibility, that parent has “sole” legal custody. The other parent (often referred to as the “non-custodial” parent) has the right to visitation (parenting time) but not decision-making responsibilities. If there are issues related to abuse and/or neglect, the court may find it is not in the child’s best interest to have visitation with the non-custodial parent.
When both parents share in this right and responsibility, they share “joint” legal custody, which generally means the parents are to communicate and cooperate with each other when making important decisions regarding their child.
Physical custody is defined as the time each parent shares with their child.
When a child spends the majority of his or her time with one parent, that parent has “sole” physical custody.
When a child spends significantly more than half the time with one parent, that parent may be called the “primary” custodial parent.
When a child spends significant time with both parents, the parents share “joint” physical custody. Joint physical custody does not necessarily mean a child spends exactly half of his or her time with each parent. A child may spend less time with one parent than the other because of the difficulty in splitting each parent’s time exactly in half. The goal of a joint physical custody arrangement is for both parents to have frequent and continuous contact with their child.
There are circumstances where the court may award parents joint legal custody—but not joint physical custody. In those instances, both parents will share the right and responsibility in making important decisions regarding their child, but the child will primarily or solely reside with one parent—and the other parent will have visitation (a certain timeshare) with the child.
CHILD VISITATION (PARENTING TIME)
Visitation (also called “parenting time”) is a plan that defines the time each parent spends with the child.
Visitation orders can vary because the type of parenting plan depends on what is in the child’s best interest. Generally, visitation can be defined in the following categories:
- Scheduled visitation: Parents will follow a parenting schedule detailing the dates and times the child will be with each parent. Parenting schedules can include holidays, special occasions (like birthdays, mother’s day, father’s day and other important dates for the family) as well as vacation time.
The court can also make orders for a specific schedule regarding phone contact for a parent during his or her non-custodial time.
- Reasonable visitation: There is no specific parenting schedule defining each parent’s time. Rather, the parenting plan is open-ended with the parents communicating with each other regarding when parenting time shall occur.
This type of parenting plan can work if the parents are willing to communicate with each other and arrange parenting time cooperatively. Otherwise, this type of open-ended schedule can cause issues to arise between the parents in the event of a disagreement or misunderstanding.
- Supervised visitation: When there is a risk a child may be harmed while under the care of a parent (due to issues with drug/alcohol abuse or domestic violence), the court may order supervised visitation. This means the visitation must be supervised by the other parent, a third party (such as a family member or friend), professional monitor or monitoring agency.
Supervised visitation may also be appropriate when a child needs time to become familiar and comfortable with a parent because the child and parent have become estranged or there is tension and strain in their relationship.
- No visitation: This option is used in cases where visitation with a parent would be physically or emotionally harmful to a child—even with supervision. In this scenario, it is not in a child’s best interest for the parent to have any contact for a specified period of time or until further court orders are made.
Child custody and visitation issues can become complex when parents are unable to resolve their differences and reach an agreement. Contact us today for a free confidential phone consultation so we can discuss your situation and advise you about the options available to you.