During a divorce or separation proceeding, couples with children will have several important decisions to make, such as who will gain custody of the children, what type of custody rights each parent will retain, and depending on the situation, the arrangements regarding visitation of the children.
Generally speaking, child custody refers to the legal rights and responsibilities that a parent has over the care, control, and upbringing of a child. There are several different ways to split custody rights, which will be discussed in further detail below.
Child visitation, on the other hand, refers to the legal rights afforded to a non-custodial parent. In other words, if a parent does not obtain any type of physical custody over a child, then they will usually be granted visitation rights. There are a couple of forms of visitation rights as well, which will also be discussed in more detail below.
Regardless of whether you are seeking custodial or visitation rights over a child, there are two main ways that a party to a divorce or separation proceeding can begin the process:
- By Agreement: The first and more preferred method is by agreement. If both parties are willing to cooperate, the parents should discuss child custody and visitation arrangements without the involvement of lawyers or the court. This way they can come to an agreement on their own terms. If this is possible, then the parents should draft an agreement in writing that states the conditions of custody and a basic visitation schedule.
- By Court Order: In cases where the parents cannot come to an agreement on their own, or if the well-being of the child is in jeopardy because of one or both of the parties’ behavior, then a court will have to intervene and make decisions about the arrangements. When the court is tasked with such a decision it typically means that the parents will be given an opportunity to present their side of the situation at a hearing.
One final thing to note about the above options is that whichever method is selected will require a court’s approval of the final child custody agreement and/or visitation schedule. The only difference is that the parties will have more control over schedules and arrangements if they can come to an agreement on their own.
What is the “Child’s Best Interests” Standard?
In the majority of family law cases where a child is at issue, the court will make decisions concerning the child based on the child’s best interest standard. This is the standard used when finalizing child custody and/or visitation agreements, and it will take precedence over most state child custody laws. However, the factors that the court considers when applying the standard will vary by state.
Basically, the purpose of the child’s best interest standard is a way for the law to ensure that a vulnerable class of persons (i.e., children) are granted the utmost protections. Thus, according to this standard, an individual taking custody of a child must be able to provide a stable home environment and must be able to ensure the safety and well-being of the child.
In order to determine whether a parent qualifies for custody under this standard, the court will consider a variety of factors, such as the parent’s ability to care for the child, the relationship that the parent has with the child, and which home would be better suited for the child’s adjustment or needs.
What are the Different Types of Custody Arrangements?
As previously mentioned, there are several different types of custody arrangements. These include legal, physical, sole, joint, and bird’s nest custody. All forms of custody refer to the rights that a parent has over a child.
Types of Custody Arrangements: Legal Custody
Legal custody refers to the right to make important decisions about how a child will be raised, such as what school they will attend, what religion they will follow, and the kind of medical care they will receive. A parent may either be granted joint or sole legal custody over their child, though joint is preferred if the parents are willing to cooperate.
In cases where joint custody is awarded or in the event of an emergency, the parent who currently has primary physical control of their child’s location will temporarily retain greater legal custody rights until the other parent can be reached, or if the issue is a minor one (e.g., punishing the child for not doing their homework).
Types of Custody Arrangements: Physical Custody
Physical custody involves the right to have a child physically live with a parent. This is usually the place that will be considered the child’s home since it is where they will spend most of their time.
However, physical custody can be awarded to both parents. In these cases, the child will either equally split their living arrangements between both parents’ homes, or the parents will design a schedule that will allot alternating periods of time in which the child will live with them (e.g., spending summers at one parent’s house and living with the other parent during the school year).
Types of Custody Arrangements: Sole Custody
Sole custody refers to when only one parent is granted both legal and physical custody of the child. This means that the parent will be able to make legal decisions on behalf of the child and also that the child will physically reside with them.
Sole custody is usually awarded in cases where the non-custodial parent poses a serious threat to the child’s well-being (e.g., is violent or abusive towards the child) or is no longer around (e.g., incapacitated, deceased, etc.).
One important thing to note about sole custody is that the non-custodial parent will not be granted any visitation rights.
Types of Custody Arrangements: Joint Custody
Joint custody allows both parents to equally share responsibility over certain aspects of their child’s life, including the amount of time a child spends with each of them and the ability to make important decisions about how the child is raised.
Parents can obtain joint legal custody, joint physical custody, or both. This means that they will either share rights to make decisions about the child’s upbringing (i.e., joint legal custody), split the time amount of time that they spend or live with their child (i.e., joint physical custody), or enjoy the rights afforded by both (i.e., joint legal and physical custody).
Types of Custody Arrangements: Bird’s Nest Custody
In rare cases, parents may opt for “bird’s nest custody.” This type of custody is when a child will dwell in the same residence, but the parents will take turns living in and overseeing the home.
Although this arrangement can make it easier for a child to adjust since they will not have to continuously split the time between two homes, it can also make it much harder if the parents disagree on certain household issues or fail to leave when it is the other parents turn to live with the child.
What are Visitation Rights?
Depending on the facts of a case, a parent may also receive visitation rights as either an alternative to child custody or in addition to custodial rights. As with custody arrangements, the terms of visitation will be provided in a formal agreement known as a “visitation schedule.” Along with a detailed schedule, an agreement will also usually contain the child’s primary residence, permitted activities, and instructions regarding modification of the arrangement.
In general, there are two types of visitation: unsupervised and supervised. Unsupervised visitation is the most common of the two. It permits a parent to spend time with their child without the supervision of a neutral third party.
In contrast, supervised visitation is less common and requires a neutral third party to be present during the visitation period. This form of visitation is court-ordered. As such, the court will typically create the parties’ visitation schedule (e.g., date, time, duration, etc.), and will appoint the person supervising the visit.
Again, similar to child custody arrangements, the court will decide whether visitation will be supervised or unsupervised based on the child’s best interest standard. Recall that this standard is only focused on what arrangement would afford the best protection over the child’s safety and well-being, not the parents. Thus, the standard has a major influence on which type of visitation the court orders.
For example, if a parent has a history of domestic abuse, substance abuse, or neglect, then the court will most likely order supervised visitation.
How Do I Modify Child Custody or Visitation Arrangements?
Even if a final court order regarding child custody or visitation arrangements already exists, it is still possible to gain custody of a child by submitting a request for modification. New or modified custody orders are typically issued in cases where one or both of the parties experience a “major life change.” These are changes that would likely have a serious impact on the child and how they are being raised.
Some major life changes that may qualify to modify an existing order include:
- When a parent’s behavior puts the child’s life at risk (e.g., abusing or selling drugs);
- If one of the parents becomes incapacitated, deceased, or some other reason that results in them no longer being able to care for the child;
- The parent remarries, relocates, or loses their job; and/or
- They complete court-ordered programs that reinstate certain parental rights.
If a situation arises in which a parent seeks to modify an existing child custody or visitation order, then they must file a request for modification with their local family court. A judge will then review their request, determine whether to make any changes, and if so, issue a new or modified order based on those adjustments.
Do I Need a Lawyer for Help with Child Custody and Visitation Issues?
Divorce and separation cases can often become emotional and overwhelming. Sometimes the parties in these cases can get so caught up in their own issues that they temporarily forget that their decisions will have an impact on not only them, but also their children. Therefore, if you are having issues with child custody or visitation arrangements, it may be in your best interest to hire a local child custody lawyer for guidance.
Your lawyer can help you stay focused on the best outcome for your child, discuss strategies that will provide such an outcome, and can make sure that your rights as a parent are well-protected in the process.
In addition, your lawyer will also be able to explain the different types of custody and their associated rights, how the laws in your state may affect the outcome of your case, and can review the conditions of your agreement before it is finalized by a court. Your lawyer will also be able to provide representation in court during any necessary hearings or in the event of a dispute.
Finally, if you need to modify the terms of an existing order, your lawyer can assist you with this process as well.