Child Custody

February 20, 2020

Kendall Ponchillia

One of the hardest parts about getting divorced with children is the issue of who gets the children and when and for how long. When going through a divorce, it is important for the parents to remember that is crucial to put on a positive atmosphere while co-parenting. Divorce can get nasty and parents can avoid the headache of fighting over the children with a parenting plan and cooperation. The parenting plan allows a family court judge to approve of a custody decision, in writing, from the parents. Once a judge approves of the parenting plan, it becomes binding on the parties and they might have to go to court to resolve any issues.

There are two different types of custody: (1) legal and (2) physical. Legal custody is the authority to make major decisions for the child, such as education and medical decisions. Normally, parents will share joint legal custody, therefore, one parent cannot step in and make major decisions regarding the child without the other. Physical custody is right to have the child reside in home and duty to care for day to day needs. Ordinarily, the court will prefer to do joint physical custody but it is ultimately decided by the best interest of the child. Joint custody is an agreement between the parents that the child(ren) will spend an equal amount of time with both parents. Naturally, one parent will probably get to spend a little bit more time with the child, and they are considered the primary custodial parent.

Sometimes it is necessary to grant sole physical custody to one parent or guardian if it is in the child’s best interest. Sole custody is granted when the parents don’t live close to one another or if there is a safety issue, drug issue, abuse allegations, and so on.

In order for a court to determine what is in the best interest of the child, the court will consider multiple factors: 1) the age, health, and sex of the child; (2) the parent who primarily cared for the child in the past; (3) the relative parenting skills of each parent; (4) the age, employment, moral fitness, and physical and mental health of each parent; (5) the stability of each parent’s home environment; (6) any emotional ties that the child has to the parents; (7) the home, school, and community record of the child; and (8) the preference of the child if the child is old enough to legally express his or her preference.

Visitation is not a term for a parent who has been given some sort of custody of the child. Visitation is granted to a parent who does not have custody of the child and therefore needs visitation to be able to see his or her child(ren). Visitation is granted for a number of reasons, whether there is a location issue or something as serious as abuse allegations. There are two different types of visitation: (1) supervised and (2) unsupervised. When a parent is granted supervised visitation rights to his or her child, the parent is not allowed to visit or spend time with the child while they are alone. Unsupervised visitation is the opposite, and means that the parent is allowed to spend one on one time with the child without someone else accompanying them. Custodial parents are allowed to ask the court to modify the visitation rights if the non-custodial parents fails to exercise his or her rights to have visitation with the child, but this is not something attorneys will encourage at first jump.

All in all, it is important to remember that co-parenting is extremely difficult but can be less exhausting when there is a positive atmosphere for the child and an agreed parenting plan, to bind both parties and cause less arguments. When the parents of the child are able to co-parent and communicate with one another in a constructive manner, the court is more likely to find in favor of joint custody because the parents are demonstrating the ability to communicate effectively and work together.