Typically, after a couple separates or divorces and there are children involved, child custody law determines how the children will be involved in each parent’s life and to what extent. Custody decisions are often as unique as the families asking for it and the final custody plan will depend on each specific family and their circumstances.

But there are some common examples of custody arrangements, which may include:

  • Sole legal custody and sole physical custody to one parent;
  • Sole physical custody and joint legal custody;
  • Joint physical custody and joint legal custody and;
  • Sole legal custody and joint physical custody.

If the court awards one parent sole physical custody, the judge will generally create a visitation schedule to ensure the child has the opportunity to have a relationship with the noncustodial parent.

How Does Child Custody Work During a Legal Separation?

One of the best ways for separated parents to decide on custody rights is for them to cooperate together to resolve custody concerns. Depending on their relationship, informally negotiating a custody arrangement can sometimes be easier than resolving it through the courts.

If for some reason they cannot reach their own agreement, and mediation does not work, the parents may need the court to handle the child custody arrangement. The court will look to the “child’s best interest standard.” To maintain your custody rights during the separation portion of a divorce, consider the following points:

  • Do not allow your spouse to impose the details solely about when and where you can see your children because both parents have equal rights at this point;
  • Hire a qualified attorney that is equipped with handling child custody situations during a separation and can create the foundation for equal parenting time with your child and;
  • Be fair to your child, and set appropriate expectations and boundaries regarding the separation arrangements.

Separation is an emotionally draining process and can become overwhelming. Negotiating your way through child custody can be difficult, but a reasonable compromise that shows both parents’ love and respect for their child is generally the best outcome.

How Does the Custody Order Work in Regards to Legal Separation?

In most states, couples may file for a legal separation. This is a preliminary document that addresses issues, such as who will stay in the family home, who will make payments for the children’s health insurance, and who will have an amount of parenting time with the children. A separation agreement is a legally binding contract. Once it is filed with the court, the court will expect the parties to comply with the terms and conditions stated in the document.

However, if the couple resides in a state that does not formally recognize legal separation, they can still file a joint parenting time agreement with the court. The mutually agreed upon document must include all aspects of where the child will be each day, including holidays, special family occasions, summertime, winter breaks, and during the school year. The transportation from one house to the other has to be included as well. This document may also specify who has to pay the cost of childcare, who maintains the children’s health insurance, and child support. Once it is filed with the court it becomes legally binding.

In some situations, couples cannot agree on parenting time and custody. In these cases, where the couple has separated, they can file a motion for a custody determination with the court. The court then holds a hearing to hear from the parties and other witnesses. The court may request a parenting expert to meet with the children, the parents, and other close friends and relatives, and they form a report and make recommendations regarding a parenting time schedule that is suitable for the child.

Additionally, courts can also consider the child’s relationship with each parent, each parent’s ability to coparent, the child’s extended family relations, where the child lives, and other factors affected by state law. But, in every state, the court makes its determinations by taking into consideration the best interests of the child.

Almost all courts use a standard that gives the “best interests of the child” the highest priority when deciding on the child custody issues. The best interests of a child varies from case-to-case but depends on many factors which include the following:

  • The child’s age, sex, and mental and physical health;
  • The parent’s mental and physical health;
  • The parent’s lifestyle and other social factors;
  • The emotional bond between parent and child, as well as the parent’s ability to give the child guidance;
  • Each parent’s ability to provide the child with food, shelter, clothing, and medical care;
  • The child’s established living pattern (school, home, community, religious institution);
  • The quality of the child’s education in the current situation;
  • The impact on the child of changing the status quo; and
  • The child’s preference if the child is mature enough to express an opinion.

Most courts prioritize which parent is likely to provide the children a stable environment and better foster the child’s relationship with the other parent. This may translate to awarding custody to the parent who has been the child’s primary caregiver with younger children. With older children, the court may grant custody to the parent who can provide continuity in education, enrich their neighborhood life, religious institutions, and peer relationships.

Can You Modify your Custody Arrangement?

In almost all states, a child’s stability in custody arrangements is of the main priority. This makes it difficult for parents to modify existing custody orders. However, the court also understands that as the children grow and parents live their lives, changing circumstances may require changing the current orders.

While each state’s procedure for changing custody or visitation differs, most mandate that the requesting parent show that, since the last order, there’s been a substantial change in circumstances. Moreover, the parent must also demonstrate that the current order no longer applies to serve the child’s best interest. If the court agrees to review the case, the judge will utilize the same best interest standard mentioned above.

What are Some Options to Resolve Disagreements About Child Custody?

Some couples can consider the process of mediation. Generally, meditation is a non-adversarial process where a neutral person meets with disputing persons to settle a dispute. The mediator does not have the power to impose a solution on the parties but facilitates towards creating an agreement of their own.

However, in some courts, the court may request the mediator to make a recommendation if the parties cannot agree. If you are concerned about the confidentiality of mediation or whether the mediator will be reporting to the judge, inquiring about how your court does things before you get started may come in handy. There are several important reasons why mediation is the preferred method to litigation for resolving custody and visitation disputes that include:

  • Mediation usually does not involve lawyers or expert witnesses and is more reasonable in terms of costs;
  • Mediation produces a settlement after five to ten hours of mediation over a week or two;
  • Mediation enhances communication between the parents and makes it much more likely that they will cooperate after the divorce or separation when it comes to raising their children; and
  • Experts who have studied the effects of divorce on children conclude that when divorcing or separating parents can cooperate, the children suffer far less.

When Do I Need to Contact a Lawyer?

If you and your partner have decided to separate and have children together, it may be useful to do minimal research on child custody rules in your state. You want your child to not have to suffer the negative consequences of a long dragging child custody case. Therefore, it is important to contact a local experienced child custody lawyer to assist you with any issues regarding child custody orders during a legal separation.