Child Custody and Visitation FAQ

The well-being of a child weighs heavily on any parent's mind. It is also undoubtedly a concern when parents are considering a breakup. Despite the reasons for separation from your child's other parent, the court will determine child custody and visitation rights.

Learn more about the process by reviewing the resources and child custody and visitation FAQ below.

What is the main difference between "legal" and "physical" custody of a child?

Parents with physical custody of a child have the right to provide day-to-day care for the child. Physical custody usually refers to where a child lives. 

Legal custody gives a parent the right to make major decisions about the raising of a child, and key aspects of the child's welfare. This includes matters such as the child's education, medical care, dental care, and religious instruction.

It is very common for parents to share both physical and legal custody of their child in a custody arrangement.

Is custody always awarded to just one parent?

No. It is common for a court to award partial custody to both parents, known as joint custody or shared custody. With joint custody, both parents must cooperate in decision-making about important issues.

If one parent is deemed "unfit" by the court, the other parent may be granted sole legal custody and sole physical custody. It is ultimately up to the court to decide whether any joint custody is in the best interests of a child.

I'm a single mother. I was never married to my child's father, and we do not live together. I want to make sure that my child stays with me, even if her father decides that he wants her to live with him. does her father have legal rights to custody?

Yes, after he establishes paternity. When a child's parents are unmarried, the statutes of most states require the father to establish legal paternity. After the father's rights have been established through paternity, the court will look at both legal custody and parenting time between the parents.

In general, courts typically prefer joint legal custody wherein both parents are involved in making major decisions for their child. When the court is asked to determine who will have primary physical custody of the child, the court will consider both parents equally in an initial custody determination proceeding.

My wife and I recently filed for divorce. It was a mutual decision, and we would like to figure out a custody and visitation arrangement without having the court ultimately decide. Is that possible?

Yes. Parents can resolve a custody and visitation matter outside of court -- either themselves during informal settlement negotiations (usually with the help of attorneys), or through out-of-court alternative dispute resolution proceedings like mediation or "collaborative law" (also with the help of attorneys).

Usually, the court will need to approve the agreement before it becomes final, but that step is typically a formality.

If my divorce goes to family court, how will the judge decide who gets custody?

In a custody case, the court will consider various factors. The overriding consideration is always the best interests of the child. Ultimately, the court will prioritize the safety and well-being of the child to decide the custody of the child. No one factor will be considered. They will be considered together. Some relevant factors include:

  • The child's preferences (if the child is old or mature enough)
  • The age and sex of the child
  • The child's needs and whether the parents are able to meet the needs of the child
  • The physical health and mental health of each parent
  • The child's relationship with each parent
  • Any evidence of substance abuse, child abuse, or domestic violence

If the court finds that either parent is “unfit," the parent may lose some parental rights to parenting time or joint physical custody. They might even lose joint legal custody, in some circumstances. If this happens, the other parent may be granted sole physical custody and/or sole legal custody of the minor child.

The non-custodial parent may still see the child through a visitation schedule and may be required to have supervised visitation. They may be financially obligated under a support order to contribute to the child through child support monetarily.

Regardless of the custody arrangement decided by the court, it's important to remember that co-parents and the court should always put the best interests of the child first.

Can anyone other than a parent get custody of a child?

In some cases, people other than a child's parents may wish to obtain custody. This includes relatives like grandparents, aunts, uncles, close family friends, or other family members who wish to get custody of a child.

Some states label such a situation as "non-parental" or "third-party" custody. Other states refer to the third party's goal in these situations as seeking "guardianship" of the child, rather than custody. This is why it is so imperative to check your state's specific statutes to see which rules apply to you and your case.

Do grandparents have a legal right to visitation with their grandchildren?

Yes. Grandparents may petition the court for a visitation order. Grandparents, who already have court-ordered visitation, may wish to enforce their legal right to visitation with their grandchildren if that right is being interfered with by the child's parent(s).

All 50 states and the District of Columbia have some variation of a law addressing grandparents' visitation rights. Grandparents can also fight for a custody order if neither of the child's parents is fit to parent the child.

Still Have Child Custody and Visitation Questions? Ask an Attorney

Child custody and visitation are often contested issues in any divorce. After all, the end result could have a significant impact on your family relationships for years to come. Your chances of achieving a favorable result are enhanced when you have an experienced attorney at your side.

Find a family law professional who can help you. A family law attorney can help provide valuable legal advice and legal help to get you through your situation. They will review your legal information and make suggestions based on your custody case. Legal assistance can help tremendously at a time when emotions are already high.

Find out more by speaking with a child custody attorney near you today.

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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.

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