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Child Custody & Visitation

Common Questions on Child Custody & Visitation

What is legal custody?

Embraced within the meaning of “custody” are the concepts of “legal” and “physical” custody. Legal custody carries with it the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning a child’s life and welfare.

What is “joint” legal custody?

Joint legal custody means that both parents have an equal voice in making legal custody decisions, and neither parent’s rights are superior to the other.

What is physical custody?

Physical custody means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody.

What is joint or shared physical custody?

Joint physical custody is in reality “shared” or “divided” custody. Shared physical custody may, but need not, be on a 50/50 basis, and in fact, most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights. Note: This is NOT the definition of “shared custody” used in computing child support.

Before there is a court order, who has custody?

Both parents are the joint natural guardians of their child under eighteen years of age and are jointly and severally charged with the child’s support, care, nurture, welfare, and education. They have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child’s custody.

What standard does a court apply in making a custody decision?

In any child custody case, the paramount concern is the best interest of the child. Formula solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made. The best interest of the child is therefore not considered as one of many factors, but as the objective to which virtually all other factors speak.

What standard does a court apply in making a visitation schedule?

Visitation issues are judged by the same standard as other custody issues: the best interests of the child.

What factors are considered in determining the best interests of the child?

No list of factors can be complete, because of the unique character of each case. Some factors are:

  1. Fitness of parents.
  2. Character and reputation of parties.
  3. Desire of parents and agreements between parties.
  4. Potentiality of maintaining natural family relations.
  5. Preference of the child.
  6. Material opportunities affecting the future life of the child.
  7. Age, health and sex of the child.
  8. Residences of the parents, and opportunities for visitation; or geographic proximity of parental homes.
  9. Length of child’s separation from parent.
  10. Prior voluntary abandonment or surrender.

More factors, especially important when considering joint custody:

  1. Capacity of parents to communicate and reach shared decisions affecting child’s welfare.
  2. Willingness of parents to share custody.
  3. Relationship between child and each parent.
  4. Potential disruption of child’s social and school life.
  5. Demands of parental employment.
  6. Sincerity of parent’s request.
  7. Financial status of parents.
  8. Benefit to parents.

How important is the ability of parents to communicate with one another?

Clearly the most important factor in deciding joint legal custody is the capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare. Indeed, joint custody should not be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.

To have joint custody must the parents agree about everything?

No. The parents need not agree on every aspect of parenting, but their views should not be so widely divergent or so inflexibly maintained as to forecast the probability of continuing disagreement on important matters.

Does sexual orientation of a parent matter?

Sexual orientation may be considered in making a custody decision only insofar as the minor child is actually harmed by it. This puts sexual orientation in the same category as lots of other behavior, including adultery and religious practices.


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