Child Custody and Visitation FAQ

The well-being of children is a factor that weighs heavy on the minds of any parent. It also undoubtedly is a concern when parents are considering a breakup. Regardless of the reasons leading up to separation from your child's other parent, the court will make determinations about child custody and visitation rights. Learn more about the process by reviewing the child custody and visitation FAQ and resources below.

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

A: Parents who have "physical custody" of a child have the right to provide day-to-day care for the child. "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 -- including 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 an arrangement called "joint custody."

Q: I'm a single mother. The father of my daughter and I were never married 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?

A: 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.

Q: 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?

A: 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.

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

A: In deciding who will have custody, the court will consider various factors. The overriding consideration is always the child's best interests. The child's own wishes may be considered as a factor the court considers, although some jurisdictions may require the child to be of a certain age before considering their wishes. The child's wishes will not dictate how the court decides but will play a role in influencing the judge's decision, along with many other factors.

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

A: In some cases, people other than a child's parents may wish to obtain custody -- including relatives like grandparents, aunts, uncles, close family friends, or other people 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.

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

A: Grandparents may also wish to enforce their legal right to visitation with their grandchildren, if that right is being interfered with by the child's parent(s), i.e. after a divorce or separation. All 50 states and the District of Columbia have some variation of a law protecting grandparents' right to visitation with their grandchildren.

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