When parents are facing divorce or legal separation, they will consider issues of child custody and visitation. To establish legal custody, whether that is primary, sole or joint custody, the parents will enter into an agreement between themselves or leave it to the court to make that determination.
Custody orders can give parents peace of mind in determining primary responsibility for a child. Courts favor joint custody to allow children to have continued full access to each parent and to ensure each parent's continuing involvement in the child’s life.
Joint custody may be appropriate when the children live geographically close to each other so as to reduce any disruption to the child’s school schedule. This likely makes the most sense given a child’s age and maturity.
Whatever the type of custody, the order will spell out who will be responsible for the child’s physical living arrangement and their health and well-being, education, and medical needs.
To get a custody order, you will need to petition the court in connection with the divorce or legal separation proceeding. If there are questions of paternity, they can be resolved at that time.
In some jurisdictions, if the parents are unmarried, the mother is issued primary custody initially until the father petitions the court to be awarded custody and visitation. In the event the person seeking custody is not a parent, for example, a grandparent, they can seek a non-parent custodial order.
In the custody order or by separate order, the family court will outline the visitation rights of the non-custodial parent and the terms of the visitation (i.e. supervised or unsupervised). Child visitation rights allow the non-custodial parent to take physical custody of the child for a limited, predetermined period of time. The parents also can make their own agreement about a visitation schedule.
The courts want there to be as little disruption to the child’s life as possible. For this reason, they will consider several factors in determining the right to visitation and the schedule, including:
- The child’s age;
- Whether the child has special needs;
- How close the parents live to each other;
- The parents’ work and life schedules; and
- The child’s schedule.
Parents should spell out as clearly as possible all issues affecting custody and visitation. These types of agreements will include the child’s primary residence, a detailed schedule of visitation (including where the child will be picked up), the time and duration of each visit, and what activities the parents can participate in.
Also included should be any geographic restrictions about where the child will be taken or what prerequisites need to be met before the child can be taken out of the child’s primary location.
Also, the order should spell out whether the visit should be supervised or unsupervised. Unsupervised visits usually occur when there has been abuse by the non-custodial parent towards the child or the custodial parent or there is a threat of kidnapping by the non-custodial parent. If supervised visit is ordered, a third-party usually performs this function instead of the custodial parent.
Child custody and visitation agreements that can be worked out amicably between parents reduce legal fees and maintain good relations between the parents. Further, if the parents can agree about custody and visitation, that will reduce their court appearances.
With the progress in advanced technology, even virtual visitation can be included in the visitation schedule. This is particularly relevant when the non-custodial parent has had to move out of state or out of the country away from the child. Virtual visitation can also be supervised or unsupervised.
You should strongly consider having the court’s review of any agreement between you and your co-parent. Once a court signs off on an agreement or order, the parties are required to follows the instructions in it or risk being held in contempt, which carries several penalties.
Importantly, the court will consider the child’s best interests in determining issues of custody and visitation. Once the court agrees that the custody and visitation agreement is in the best interest of the child, it can sign off on the agreement.
The child’s best interest standard will vary, but typically it will consider the strength of the relationship between each parent, the emotional and developmental needs of the child, the child’s age, and the financial and emotional stability of the parents.
To preserve your right to custody and visitation with your child, you should consult with a child custody lawyer in your state. Your family law attorney should can provide guidance in dealing with these types of issues and will be able to advise you how best to protect your rights and interests.