Types of Custody
Legal Versus Physical Custody
Legal custody is the right to make decisions about your child, including:
Education
Religion
Medical issues
Discipline
Physical custody is having the child physically present with you.
Sole Versus Joint Custody
With sole custody, you alone have legal and physical custody of your child.
In a joint custody arrangement, you and your ex-spouse share legal and/or physical custody of the child. This might mean:
Having the child spend a significant amount of time with each parent
Spending weekdays with one parent and weekends with the other parent
The child spending most of his or her time with one parent and visiting with the other parent on a regular schedule
The parents moving in and out of a home where the children live (called “nesting”)
Parenting Agreements
Most states require divorcing parents to have a written plan outlining:
Where the child will live
Details of when the child will be with the noncustodial parent
Who will make parenting decisions and how
Where the child will be during holidays and school vacations
How vacation time with each parent will be determined
Factors In Determining Custody
If you and your spouse cannot agree on a custody arrangement, the court will likely make a decision based on the “best interests” of your child.
Factors the court will consider in deciding what’s in your child best interest include:
Who is currently and has been the primary care provider for the child
The mental and physical health of both parents
Special needs such as medical care and psychological counseling your child may have
The work schedules and availability of each parent
Where any siblings will live
The support systems (family and friends) of each parent
The preference of an older child, such as a teenager
The cooperation level between parents
Any history of domestic violence between the parents
What To Expect In Custody Litigation
Laws and procedures vary by state, but you should expect the following in a custody lawsuit:
One of the parents files for a divorce and asks the court to decide custody
Both parents file paperwork detailing each parent’s plan for where the child would live, visitation schedules, and how decisions concerning the child would be made
The court will likely appoint an investigator, sometimes called a “custody evaluator” or “guardian ad litem,” to interview the child, parents and potential witnesses such as family, friends and teachers, and make recommendations to the court regarding custody
The parents may be required to go to mediation, where a neutral third party will help the parents work out an agreement without going to court
The parents may be required to complete a short parenting course regarding parenting after a divorce
Attorneys for both parents may take “depositions” - formal questioning of witnesses under oath- to prepare for trial
Both parents will likely have to answer formal written questions under oath, called “interrogatories”
There will be a series of motions and hearings before the actual trial, to determine temporary custody and child support
At trial, the judge will hear from both parents and witnesses
The judge may make his or her decision at the conclusion of the trial, or may wait and send a written decision days or weeks after the trial has ended
Fighting over your child is expensive, time-consuming and emotionally damaging to everyone involved, especially your child. But knowing your rights as you begin the process make help you make better decisions.
It is essential to hire a competent local lawyer who specializes in custody litigation to help you in this process.
Fortunately, most divorcing parents don’t fight over custody, but when they do, it’s a doozey. Not because it’s complicated (it rarely is) but because it generates such incredible emotional intensity among the parties, the lawyers, and the courts, as well as — oh yes — the hapless children whose fate is being decided.
When a husband and a wife are disputing in court over a house, a retirement plan, or the family business, it can become obvious at some point that the cost of the fight is approaching and perhaps exceeding the value of the asset, and the parties will often take steps to reach agreement, or at least to control the costs of the fight.
But this can never be the case with a fight over child custody, since one can never put a price on child custody.
Because of this simple fact, it’s not unusual to see parties in divorce (or after divorce) spending many times their net worth in a fight over custody of their children. While the fight is under way, they simply lose all touch with the cost.
The very term “custody” encourages conflict between parents, because they naturally assume that somebody “wins” custody and somebody loses it. It doesn’t have to work that way. Children need a close, loving relationship with both parents.
The Basics
One of the first things to understand about custody is that it’s just not fair. It’s not fair to either parent, and it’s certainly not fair to the children.
And a court is charged with the duty to protect the interests of children, not to be fair to either parent. Because of this, a parent who has done everything he or she is supposed to do still may suffer an adverse ruling, simply because the judge believes it is in the best interests of the child.
Another fact about custody — often misunderstood — is that neither parent has the authority to bind the court or the child on custody arrangements in the future. Only the judge can do that.
So forget that plan you and your spouse are discussing in which the children are going to live with the other parent for a year and a half while you’re finishing school and then come to live with you after you have your degree. When that time comes, the judge may very well decide it’s not in the interests of the children to force them through another change. Is that fair to you? No, but it may be in the best interests of the children.
Nearly every state and province has a presumption in favor of the status quo when it comes to children. That is, before a judge will force any change in the lives of children, somebody will need to convince the judge that there’s either something really bad about the present arrangement or something that would be dramatically better about the child’s life after a change. If nobody can show that, the judge is likely to leave the present arrangement unchanged.
Getting Help
The kind of lawyer you need for a child custody issue depends on what you’re trying to accomplish. If you and your spouse are at war over custody (and that’s the only way to describe a custody fight), you need the biggest ugliest gun you can find. Custody fights are a distressing war of attrition in which the goal is to be the last one left standing.
If you’re really in a custody fight, you need to ask around and find one of the lawyers in your area who has a reputation for success in tough, adversarial divorce fights, particularly custody fights. And you need to figure out how you’re going to pay for it.
On the other hand, if you and your spouse are trying to work through arrangements for your child and both of you are working toward a common goal of being good parents for your child, you need a calm, savvy advisor who can not only represent your interests in court but also help alert you to some of the issues you’re likely to face as a parent after the divorce. The skills needed for this are quite different — and more complex — than those needed for the full-scale custody fight. For reasons discussed above, it’s easy to lose track of cost when you and your spouse (or ex-spouse) are dealing with custody issues. So it’s particularly important to keep the lines of communication open with your attorney about how much you’ve spent on your legal bill.
You may want to work out an arrangement in which your attorney summarizes for you each month (or periodically when you request) how much of your original retainer remains unspent, what major expenses are on the horizon, and what your attorney estimates the total cost of your case could be.
Although no good attorney would be willing to tell you exactly how much a custody fight would cost because there are too many variables, an informed estimate can be a good tool for both of you. If you see that estimate continuing to increase, it can be a good catalyst for a heart-to-heart with your attorney about cost.
What’s Next?
Parents going through divorce are fond of telling each other and the world that the children are their most important focus — that they’re doing only what’s best for their children. In reality, however, this is excruciatingly difficult, and parents rarely do it. When they are in the throes of divorce, they focus on themselves and their struggle. If they are able to focus on the children (and some parents are), they rarely fight over custody. The very best way to care for your children in the midst of a divorce is not to fight over them.
You and your spouse are going to be negotiating your parenting arrangements at least until your child is married, and probably beyond that. Where the child will live, how often he or she will visit, who will make what arrangements for transportation, who will pay for what expenses — all of these questions are subjects for negotiations between parents. Among other things, that means you might as well get started now learning to work things out together. If you don’t, it’s going to be a long hard road for both of you and especially for your child.
That said, please know that parents often use custody as a cynical bargaining chip. A father, for example, who has no realistic chance of winning custody and even no real interest in having the children live with him, may threaten to sue for custody because he knows it will terrify their mother and prompt her to negotiate away some of her financial rights. Or a mother may use time with the children as a powerful tool – a way to punish their father for an extra-marital relationship.
One of the most important assets you can carry into a negotiation over custody and visitation of children is a cool head. Your children need both their parents, and they need parents who will cooperate to be good parents even while they’re negotiating the issues of their divorce.
"Do what’s best for the kids."
Everyone says that during a divorce. But determining "what’s best" often becomes a mud-slinging tug-of-war where no one wins — especially the children.
Shared parenting plans attempt to diffuse the fighting, putting the children first. Both parents get joint legal and physical custody. The terms "custodial parent" and "visiting parent" no longer apply.
Supporters say joint custody helps fight the "fading father" syndrome, keeping dads emotionally and financially involved.
It makes sense. In a perfect world, children should grow up in a loving, supportive environment with both parents. And in a perfect world, both parents should share equal responsibilities, eradicating "traditional" gender roles where the father’s the sole breadwinner and the mother’s the sole caregiver.
But in the real world of divorce, the rational, level-headed thinking that joint custody often requires doesn’t always seem possible. And that’s the biggest barrier.
Read the Prairielaw.com message boards and you’ll see firsthand the emotional roller coaster of divorce.
It’s not easy for an ex-husband to drop the kids off at the home of his former wife, who he says lives with a new boyfriend every other month. It’s equally difficult for an ex-wife to encourage her kids to see their dad after he walked out on them. And one woman complains that shared parenting keeps her from moving up in her career, since she can’t take her dream job across the country without giving up her son. She questions adhering to the rules when, in her opinion, the father ignores the children and doesn’t pay any child support.
But David Luevy, an attorney and president of the Children’s Rights Council, based in Washington D.C., says that, overall, shared parenting works better than sole custody arrangements.
Making it Work
The Children’s Rights Council suggests the following custody schedule.
Age | Recommended contact with both parents |
Under 1 year | Part of each day |
Ages 1 to 2 | Every other day |
Ages 2 to 5 | Not more than two days w/out seeing parents |
Ages 5 to 9 | Alternate weeks; "off duty" parent getting a mid-week visitation |
Over 9 | Alternate weeks |
Luevy says studies from the American Psychological Association show that children tend to fare better emotionally when both parents are involved, minimizing the lasting effects of divorce. And fathers who share custody are also more likely to pay child support.
A U.S. Census Bureau report published in 1989 shows that 90.2 percent of fathers with joint custody pay the support due, while only 79.1 percent of fathers with visitation privileges pay full child support and only 44.5 percent of fathers with no visitation pay.
Judith Seltzer at the University of Wisconsin in Madison says that after studying more than 13,000 divorced families, she found that joint custody keeps fathers more involved.
Joint Custody
Advantages:
Both parents usually stay more involved.
Child support is fully paid more often.
Parents share more responsibilities and raise the child together.
Disadvantages:
It doesn’t work as well if the parents don’t live in the same area.
It’s ineffective if the parents continue to fight. Children want their parents to get along and divorce is supposed to solve that problem.
Kids may complain about feeling "unsettled" since they have to switch houses so often.
It can be a difficult arrangement to uphold when the child becomes a teenager. Luevy says that parents need to be flexible and work with the child to work out a schedule.
About one in five currently divorced dads hasn’t seen his children in the past year, says Seltzer in her report "Father By Law: Effects of Joint Legal Custody on Nonresident Fathers' Involvement with Children."
The only time shared parenting doesn’t work better than other custody arrangements is if the parents continue to fight, says Luevy. Arguing, crying and all the other emotional baggage that’s hard to shed hurts the children more than anything else. (Of course, joint custody isn’t possible if one of the parents is abusive or unfit in other ways.)
Diane Lye, author of the Washington State Parenting Act Study, which examined the effectiveness of Washington’s divorce and custody laws, agrees that if parental conflict exists, shared parenting "has adverse consequences for children in high conflict situations."
With that said, should fighting parents even attempt 50/50 shared parenting arrangements?
Luevy says yes.
"Even the most contentious parents can make joint custody work with highly structured visitation schedules," he says. "A flexible schedule will not work."
That’s why the Children’s Rights Council promotes using "drop off points," a neutral setting to transfer the kids, so that parents don’t have to see or talk to each other.
"Community centers, churches and day cares make excellent neutral settings," he says.
Joint custody is now the preferred and presumed custody arrangement in 26 states and the District of Columbia. And more than one out of five divorces has shared parenting arrangements, says a 1997 report from the National Center for Health Statistics.
"Considering the fact that for hundreds and hundreds of years, sole custody has been the only acceptable custody arrangement, it’s remarkable how quickly shared parenting has caught on," says Luevy.
He says only about five to 10 percent of divorced parents actually duke it out in court for custody.
But even the courts are increasingly favoring joint custody, instead of choosing one parent over the other. Recently a divorced couple in Boston made headlines when an Appeals Court ruled that the mother and father would rotate school years, so that one parent gets the child during the school week and the other parent gets the child for the weekends for one year. Then the parents will reverse the schedule the next year. Both parents had asked for sole custody.
Every state has a different approach to standard visitation. What I've included here are a couple of typical examples drawn from the court where I practice, phrased with mom as the primary custodial parent. Please don't assume I think these are necessarily the right approach for you or even that I think these are the right approach generally. I place them here just so you can get an idea what kind of provisions you may see.
When Mom and Dad Live Nearby
The first and third full weekends of each month from 6 p.m. on Friday until 6 p.m. the following Sunday (the first weekend of a month beginning on the first Friday of each month).
Each Christmas day from 3 p.m. until 3 p.m. on the following New Year’s day.
31 days during the summer (to be taken between June 10 and Aug. 15), to be selected by the husband but upon written notice to the wife at least 30 days before such visitation.
During the odd years, spring break from 9 a.m. Saturday until the following Saturday at 6 p.m.
During the even years, Thanksgiving vacation from 6 p.m. Wednesday until Sunday at 6 p.m.
Every other birthday of each child from 6 p.m. on said date until 8 a.m. of the following day, beginning with the next birthday.
Every Father’s Day from 9 a.m. until 6 p.m. of the same day.
On the birthday of the husband from 3 p.m. on said date until 8 p.m. of the same day.
At such other times as agreed upon between the parties.
Each parent shall keep the other informed of the primary residence address and telephone number where the children reside or visit.
When Mom and Dad Live Far Apart
Here's the standard visitation my court uses when the child and the non-custodial parent are separated by distance, also phrased with mom as the custodial parent: The husband shall have the right to have the children with him as follows:
Six weeks during each summer at a time to be selected by the husband, provided, however, that husband shall have notified the wife of the dates of the intended visitation at least 30 days before such visitation.
Each Christmas, beginning on Dec. 26 at 9 a.m. and ending New Year’s Day at 3 p.m.
During the odd years, spring break from 9 a.m. Saturday until the following Saturday at 6 p.m.
During the even years, Thanksgiving vacation from 6 p.m. Wednesday until Sunday at 6 p.m.
Any other reasonable times the husband is in the town in which the minor children reside.
Husband shall give 48 hours notice and the visitation should be no longer than 48 hours in duration.
At such other times as agreed upon between the parties.
During any periods of visitation, after the children reach the age of 12 years, the said children may travel by commercial airliner, provided:
The husband shall pay all air fares for the transportation of said children.
The flights shall be either non-stop or direct and no change of planes will be involved until the children reach the age of 14 years.
All travel arrangements shall be made by the husband.
The husband shall notify the wife not less than 10 days of the date of visitation, of the date, time, airline and flight number of the proposed carrier.
The husband shall send to the wife the round-trip airline tickets or shall ensure that they will be at the air terminal ready for said children at time of departure.
The wife shall be required to deliver the said children to the nearest commercial airport offering direct flight service to the airport at which the husband will receive the children, not to be in excess of 150 miles from wife’s residence. The wife shall also pick up said children at the termination of the periods of visitation.
The husband shall ensure that either he or the children notifies the wife of the arrival of the children as soon as possible after the children are met by the husband.
At the end of the period of visitation, the husband shall notify the wife of the dates, time, carrier and flight number of the children’s return. The husband shall notify the wife 24 hours before the time of departure.
On the return of the children, the wife shall ensure that either she or the children notify the husband of the children’s return.
The husband shall enjoy the right of telephone visitation each Thursday, between the hours of 7 p.m. and 8 p.m. local time with the minor children, at the husband’s expense. The wife shall neither interfere with nor listen in or be party to the telephone conversation during the said period of time.
Each parent shall keep the other informed of the primary residence address and telephone number where the children reside or visit.
In an increasingly mobile society, it’s becoming more common for parents to want to relocate themselves and their children after a divorce. No matter how the issue is decided, someone loses: either the custodial parent is prevented from moving to take advantage of job opportunities or family support networks, or the noncustodial parent only sees the kids on holidays and during the summers.
Most states now have laws that spell out exactly how a court will decide whether or not the custodial parent can legally move out of the local area with the children after a divorce.
In some states, the custodial parent must give the noncustodial parent official written notice of the intention to move, and it’s up to the noncustodial parent to file an objection with the court, which kicks off a court battle.
In other states, the custodial parent must file a petition with the court asking for the court’s permission to relocate.
Negotiate, Negotiate, Negotiate
Whether you’re the custodial or noncustodial parent, you’re more likely to reach an outcome you can live with by negotiating with your ex-spouse, trying to come to some compromise that will allow the custodial parent to move while still maximizing the noncustodial parent’s time with the children.
If time allows, a formal mediation may help clarify the issues and reach an agreement without having to take the matter to court. A mediator is an impartial third party trained to help people come to an agreement on difficult issues.
In coming to a negotiated agreement, it’s important to consider logistics such as when the childrens’ school schedule allows visits outside the local area, and who will pay for and arrange transportation back and forth.
How the Court Decides
In some states, the court presumes the custodial parent’s move will be allowed, unless the noncustodial parent can present compelling evidence that the children will be harmed more than helped by the move.
In other states, the custodial parent has the burden of proving that the relocation is in the “best interest” of the children.
Some of the factors courts look to in deciding whether the custodial parent should be permitted to relocate with the children include:
The relative strength, nature, quality, extent of involvement and stability of the child’s relationship with each parent, siblings, and other significant people (such as grandparents) in the child’s life
Any previous agreements between the parties
Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation
The intent of each person for seeking or opposing the relocation, and the good faith of each of the parties in requesting or opposing the relocation
Whether there’s an established pattern of conduct of the parent seeking the relocation to promote or thwart the relationship of the child and the non-relocating parent
The age, developmental stage and needs of the child
The likely impact the relocation or its prevention will have on the child’s physical, educational and emotional development, taking into consideration any special needs of the child
The quality of life, resources and opportunities available to the child and to the relocating party in the current and proposed geographic locations
The feasibility of alternative arrangements to foster and continue the child’s relationship with and access to the other parent, considering finances and practical concerns
The alternatives to relocation and whether it’s feasible and desirable for the other party to relocate at the same time
The financial impact and logistics of the relocation or its prevention
The child’s preference, taking into consideration the age and maturity of the child
The court may appoint what’s called a “guardian ad litem” to thoroughly investigate and make a recommendation to the court. A guardian ad litem will want free access to your child and extended family and other support network connections. It’s important to be honest and cooperative with a guardian ad litem.
If the court decides relocation is in the best interest of the children, the noncustodial parent is faced with either seeing the children only at holidays and summer visits, or relocating to the same location as the custodial parent and children.
