Custody Overview

Child custody and visitation are often the primary concerns of separating parents. They also tend to be the most emotionally difficult legal processes during a divorce that involves minor children.

Below you will find introductory information on child custody and visitation. You will also find answers to common questions about shared parenting time. This section also provides information on how the court makes custody decisions. It also includes some practical considerations for post-breakup parenting.

The Different Types of Child Custody: Overview

Courts cannot "split the baby," so to speak. So, courts grant parents various types of custody for dependent children. Family courts should base these decisions on the child's best interest.

Here are the main child custody terms important to family courts:

  • Physical Custody: Physical custody means which parent has physical possession of the child. Courts rarely award one parent sole physical custody. "Physical custody" is also called visitation, parenting time, timesharing, or parenting schedules.
  • Legal Custody: A parent with legal custody can make important life decisions on behalf of the child. In most cases the court will not grant legal custody to a parent who is absent or unable to make these decisions.
  • Joint Custody: This is the most common type of child custody. Both parents have equal decision-making authority over the major decisions for the child. If they don't agree, they will generally need to go to court and let the judge decide.

Factors Affecting Custody Decisions

The guiding factor in any child custody decision is "the child's best interest." But this isn't always simple to determine. Sometimes psychologists or social workers evaluate children to help reach a conclusion. Ultimately, the court wants to put the safety and well-being of the child's life first.

State laws differ, but courts generally consider the following factors when deciding custody cases:

  • The needs of the child
  • The mental health and physical health of the parents
  • The ability of each parent to fulfill their parental responsibilities and take care of the child
  • Evidence of parental substance abuse, child abuse, or domestic violence
  • Change to the community and school of a given parent
  • Religious upbringing or cultural considerations
  • Stability of either home
  • The ability to interact with other relatives and extended family members
  • The child's own wishes (if the child is old enough)
  • The ability of each parent to provide health care or medical care to the child

Most courts try to award joint custody. This means that co-parents share both joint physical custody and joint legal custody. However, courts may deem a parent “unfit" to parent. As a result, the custody arrangement may give preference to the other parent. The court may order the non-custodial parent to pay child support to financially assist the other parent. The other parent may get sole legal custody or sole physical custody of the child, or both.

Child custody cases are complicated and require many different factors. Ultimately, the court is the final decision-making authority about the custody of a child. Co-parents may be unable to come to an agreement about custody. In this case, a court may appoint a guardian ad litem or custody evaluator for the child. They will decide on a parenting plan that is in the best interest of the child.

Parenting Time/Timesharing

Parenting time and timesharing is an important aspect of child custody. It mandates times when each parent may visit with the child. All courts will address parenting schedules when necessary. This may be the case when the parents cannot agree. The courts will attempt to work out logistics, such as exchange locations or times. Parents who believe they aren't getting fair parenting time may call for a court hearing on the matter.

Talk To a Lawyer About Child Custody Today

Child custody can be a complicated issue to navigate. Speaking to an experienced family law attorney will help. Lawyers will provide valuable legal advice and review the law in your jurisdiction that applies to you. They can also help advise you on your parental rights to make important decisions. They will help you through your custody dispute until a final court order is reached about your custody agreement.

Review your claim with an experienced child custody law attorney today.

Learn About Custody Overview

  • Child Custody Basics: A breakdown of child custody and visitation law, such as the different types of custody, factors affecting the custody decision, determining a child's “primary caregiver," and related matters
  • Child Visitation FAQ: Answers to frequently asked questions about parental visitation rights, including the legal meaning of “reasonable," how to prevent child abuse during a visitation, grandparents' visitation rights, and more
  • How Custody Decisions are Made: Basics of how child custody decisions are made in family courts, including non-parental custody decisions, custody issues for unmarried parents, and reaching agreements out of court
  • More Child Custody and Visitation FAQs: Answers to additional questions about child custody and visitation, such as the difference between “legal" and “physical" custody, the custody rights of unmarried fathers, and child custody eligibility requirements
  • Virtual Visitation: So-called “virtual visitation" options for noncustodial parents who are unable to meet with children in person, such as the use of telephones, web cameras, and other technology
  • Child Custody Forms by State: Links to court forms and instructions pertaining to child custody for all 50 states (plus Washington, D.C.), including forms for modifying child custody orders and providing for grandparent visitation
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Can I Solve This on My Own or Do I Need an Attorney?

  • Both parents can seek custody of their children — with or without an attorney
  • An attorney can help get the custody and visitation agreement you want
  • An attorney will advocate for your rights as a parent

A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

Start Planning