Almost nothing is as fiercely disputed during a divorce as a child custody case. Even with everything else settled, a custody battle will rage on—to nobody's benefit. Other custody arrangements, such as foster placement and adoption, can be the same or worse. Custody and visitation rights bring out the worst in almost everyone when there is no agreement.
State and federal regulations determine how to decide child custody and visitation if the parents cannot agree. Who makes the final decision in a custody and visitation case? How are court orders written when parents and guardians cannot agree?
Custody and Visitation Law
Each state regulates its own child custody laws. For instance, Texas calls child custody “conservatorship." When you are a “conservator" in Texas, you have a court order granting you custody rights for your child. Interstate laws determine what to do when a parent moves out of state. Federal laws, such as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), oversee non-custodial parent kidnapping, international travel, and adoption.
During a divorce, one parent receives primary physical custody based on the child's age and proximity to schools or activities. Parents should create a child custody plan that includes visitation rights for the non-custodial parent. Courts prefer the parenting time to be as close to 50-50 custody as possible.
Custody issues arise when one parent lives too far from the other parent for a 50-50 custody arrangement to be practical. Issues also arise when parents have opposing schedules that prevent regular pickup and drop-off times. In particularly bitter or hostile divorces, parents may create child custody disputes by demanding the child spend certain days with them. Or they may demand the child attend a school outside both parents' reasonable travel areas.
Types of Custody
When courts, parents, and attorneys sit down to discuss child custody agreements, several types of custody are under consideration. These court hearings can become heated and sometimes violent, especially when the parties don't stop to consider the needs of the child ahead of their own demands. In most states, co-parenting is the goal. Custody of a child will be as close to 50/50 as possible unless there are other considerations.
- Sole custody means only one parent or individual receives the full rights and duties to care for the child. Sole custody is granted when it is in the best interest of the child, or if one parent has had their parental rights terminated.
- Joint custody means both parents share the duties and responsibilities to raise the child.
- Physical custody is where the child primarily resides. It involves the parents' duty to provide food, shelter, and other necessities to the child. Physical custody is determined by the amount of visitation (sometimes called "access") each parent has with the child. In most cases, physical custody is joint. But in some cases, a judge may grant sole physical custody to one parent, such as if one parent is on supervised visitation due to a safety concern for the child.
- Legal custody refers to the parents' rights and responsibilities for decisions about the child's education, medical care, religious upbringing, and discipline. In joint legal custody, the parents have an equal say in the child's upbringing. If there is a compelling reason for a parent not to have a role in an aspect of the child's life, a judge may issue a court order preventing the parent from exercising their rights in that area.
For instance, if there have been allegations of child abuse, a judge may include an order restricting a parent from physically disciplining the child during parenting time. In some states or counties, such as Florida, the parent with whom the child spends the most time is listed as the “legal parent" on school records. If there are questions about your state, you should get legal advice before signing the custody agreement.
The Child's Best Interest
Family law judges and attorneys make child custody decisions based on the best interest of the child. This legal doctrine grants a judge great leeway in deciding what will be the best outcome for the custody of your child. If the judge has to make the final decision, the parents' desires are no longer part of the equation.
Some states have a list of specific factors a judge must consider in weighing parents' opposing custody arrangements. Others allow the judge to use their own discretion. The factors usually include:
- The parent who has been the primary caregiver to this point. There is no longer a "maternal presumption" that the mother will be the better parent for young children. Some states still make an exception for nursing infants.
- The parents' mental and physical health, and attitude and demeanor in court. Do not anger the judge during a custody hearing.
- The parents' history, employment, family ties, and background. A criminal history is not a bar to custody, but in some states, domestic violence or sexual abuse may limit custody or visitation.
- The wishes of the parents and, in some states, the child's wishes. A few states will ask the child which parent they prefer to live with. Usually, the child must be over 13 to make a choice.
If there are allegations of abuse or neglect by one parent, or the child is in the middle of a high conflict between their parents, the child may have their own legal representation. The court may appoint, or a parent may request, a guardian ad litem (also known as a "best interest attorney" in some states). This is a neutral third party who represents the interests of the child during the custody proceedings. The guardian ad litem:
- Meets with the child
- Observes the parent-child interactions
- Speaks to third parties such as teachers and counselors
- Conducts home visits to confirm appropriate living arrangements
- Reports their findings to the court
Once the judge reviews this information, the judge issues a custody order and visitation order. They may be a single document, or they may be separate documents.
Family Member Visitation and Custody
During a divorce, many family member relationships fall by the wayside. Some of these are grandparents. In contentious divorces, a husband may wish to sever ties with his wife, but his parents may still want to see their grandchildren. If the wife refuses to let her husband's parents see the children, do they have visitation rights?
Some states say yes. Grandparents who can show they played an important role in the child's life can petition the court for visitation days. The right to grandparent visitation is not as strong as parental rights. If the mother chooses to contest, the grandparents will need to show that it is in the child's best interest for the judge to grant visitation rights.
Grandparents may receive custody if both parents are unavailable or unfit. Grandparents are not awarded custody in divorce cases unless there is a compelling reason neither parent can have custody. A child custody lawyer can explain these matters more clearly.
How a Child Custody Attorney Can Help
If you have a child custody or visitation issue, you may need legal help to resolve your issue. Another court order must modify child support, custody, and visitation orders. You must show you have had a "substantial change of circumstances" or that you believe the other party has had a similar change.
For instance, if you need to change your child visitation order, you might explain that your job hours have changed and you now work weekends. This means you cannot keep your child on weekends as the schedule requires. If you and your ex-spouse cannot work things out informally, you need a family law attorney to help petition the court for a modification.
If you are facing a child custody or related legal issue, you may want to contact a custody and visitation lawyer to explore your legal options.