Custody and Visitation
When parents divorce, it is vitally important to learn about the child custody and visitation options that are available and the legal standards that apply. In many cases, divorcing couples can ultimately agree on custody and visitation issues without the need for a court order. When an agreement cannot be reached, though, knowledgeable advice and representation from a family law attorney at Carol A. N. Breit, Attorney at Law in Richmond, VA, can make a huge difference.
Child custody basics
The duty to provide the day-to-day care for a child and the right to direct the child’s daily activities is known legally as physical custody. Legal custody, on the other hand, deals with the making of decisions regarding the child’s upbringing.
There are many options available to divide the custodial rights and responsibilities between divorcing parents. More and more, courts are encouraging parents to continue working together to raise their children even after their marriage has ended. This is known as “co-parenting,” and child psychology and development experts agree that having a quality relationship with both parents who are able to collaborate effectively is wholly beneficial for the children involved.
Custody arrangements sometimes include one or more of these options:
- Sole custody. Sole physical custody is when one parent retains the exclusive, primary right to have the child live with him or her. Sole legal custody is when one parent has the exclusive right to control important aspects of the child’s upbringing (like where the child will attend school, what religion he or she will be introduced to, where medical treatment will occur, etc.). The most common type of sole custody is sole physical custody to one parent, with joint legal custody and a generous visitation schedule for the other. When one parent ends up with the primary responsibility for the couple’s children, the other parent, known as the “non-custodial parent,” usually has a right to maintain contact with the children through ongoing visitation.
- Joint custody. In a joint custody arrangement, parents share responsibility for decision-making, for physical control and custody of the children, or for both.
- Split custody. Split custody is a less popular resolution where, when multiple children are involved, each parent takes custody of a different child.
- Shared parenting. Shared parenting is a relatively new concept in child custody that is growing in popularity across the country. In shared parenting, children usually spend approximately equal amounts of time with each parent and the parents share both legal and physical custody.
Determination of custody and visitation
Divorcing couples should tackle custody and visitation issues as soon as possible upon separation, or even beforehand. Courts generally honor both short-term and long-term custody arrangements agreed to by parents. When couples cannot agree on custody and parenting time, however, procedures exist throughout the divorce process to resolve these conflicts.
Common procedures used to resolve custody issues include:
- Temporary hearings. The family court holds a temporary hearing shortly after the initial legal separation or divorce papers are filed. If custody is contested at this point, the court will issue a temporary custody order that will be in effect until the court enters its final divorce decree.
- Custody and mandatory mediation. Most states now require parties in a contested divorce to at least attempt mediation before resorting to court. Mediation is a form of alternative dispute resolution in which divorcing couples work with a specially trained neutral third party to resolve some or all of their disagreements. Couples who are able to resolve their custody disputes through mediation sometimes choose to include a provision in their final divorce decree making mediation mandatory to resolve future custody and visitation disputes.
- Custody evaluations. If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. The custody evaluation is made by an impartial expert whose assessment the court relies upon when making a child custody arrangement that is in the best interests of the child.
- Custody trials. Every state has statutes and procedures for the legal resolution of disputed child custody. Most family courts decide contested custody cases based upon a determination of what arrangement is in the “best interests of the child.” Factors considered in determining custody arrangements include the child’s age, the child’s attachment to the parent who has been the primary caretaker, the physical and mental health of each parent, the existence of domestic violence and the child’s wishes, among others.
Modification of custody and visitation
Once the issues of custody and visitation have been resolved, either by the court or the by agreement of the parents, specific procedures must be followed before significant changes can be made to the arrangement. If the parents reached their agreement through mediation, they may have to go back to mediation to make future modifications. If custody was established by a court order, the parents must typically petition the court to make any modifications. In order to support a request for a change to a custody or visitation arrangement, the parent seeking the modification must show a substantial change in circumstances. Some courts will only consider a request for modification within a certain number of years after the original custody determination, but courts will almost always consider a request for modification if there is a showing that the child is endangered by the current custody arrangement. Some states place residency limitations on requests to prevent parents from “shopping” for a friendly ruling in a different jurisdiction.
Contact a family law attorney
The resolution of child custody and visitation disputes requires parents to act rationally and in their child’s best interests at a time when they are facing the overwhelming stress of divorce. Advice from a family lawyer at Carol A. N. Breit, Attorney at Law in Richmond, VA, can help you to understand your options and to make a plan that will serve the best interests of both you and your children.
DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.