Frequently Asked Questions about Child Custody

Q: What is the difference between legal and physical custody?

A: Physical custody refers the responsibility or control of the actual living arrangements of the child and who has responsibilities associated with daily childcare. Legal custody means the responsibilities associated with raising a child and generally addresses issues related to health, education and general welfare.

Q: When parents can't reach an agreement on custody what standards do courts use to decide with whom the children should live?

A: When parents cannot reach an agreement regarding child custody, most courts try to decide custody based upon an analysis of what arrangement is in the best interests of the child. While statutes and standards differ from state to state, a best interests determination is usually reached by reviewing parental wishes, the mental and physical health of the parents, any history of domestic abuse, review of the child's age and attachment to the parent that has been the primary caretaker, and the child's wishes depending upon the age of the child and the motivation for the preference.

Q: What impact should a child's age have on of custody and visitation scheduling?

A: Development experts agree that children of different ages have different needs regarding visitation scheduling. Experts generally recommend the following schedules, which may need adjustment for parents with either outstanding or limited parenting skills.

• Birth to 8 months: 2 or 3 weekly visits of 2 to 3 hours each.
  
  
• 9 to 12 months: 2 or 3 weekly visits of 4 to 8 hours each with one possible overnight weekend visit of 10 hours.
  
  
• 13 months to 3 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24-hour weekly overnight weekend visit.
  
  
• 4 to 5 years: 2 or 3 weekly visits of 6 to 8 hours each with one 24 hour weekly overnight weekend visit and the beginning of vacation (three 2 day visits per year).
  
  
• 6 to 8 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Allowances should be made in the schedule for "homesickness" that allows children to return to primary parent as needed during longer visitation times.
  
  
• 9 to 12 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally.
  
  
• 13 to 17 years: Every other weekend from Friday after school until Sunday night and one other weekday night (dinner and homework to be completed during the visit). Vacations of 3 consecutive weeks in the summer (during which other parent gets visitation) and other school vacations split equally. Teenager should be consulted for modifications consistent with other activities.
  
  

When parents enter into a shared parenting arrangement, the Children's Right Council recommends the following custody schedule.

• Under 1 years. Part of each day with parent.
• 1 to 2 years. Every other day with each parent.
• 2 to 5 years. No more than two days without seeing a parent.
• 5 to 9 years. Each parent takes alternate week with off-duty parent getting mid-week visitation.
• Over 9. Alternate weeks.

Q: Is joint custody really better?

A: While no one solution will ever be right for all people, research seems to indicate that most children of divorce benefit from the ongoing involvement of both parents throughout their childhood. Joint custody will not work if the parents aren't living in the same area or if the parents can't stop fighting. Of course individual family circumstances like domestic violence, physical or sexual abuse, chemical dependency, and neglect affect the basic determination and preference toward joint custody.

Q: What is shared parenting?

A: Shared parenting is the newest concept in post-divorce parenting. When shared parenting is adopted, the participants enter into a written agreement that defines a parenting relationship based on equal participation of both parents in the ongoing upbringing of their children. Parents agree to work together to implement a plan that is in the best interests of their children and agree to attempt to amicably resolve disputes that arise.

Q: Can I get custody changed if the agreed upon visitation plan isn't working out?

A: There are certain rules that must be followed in order to modify even an agreed upon custody and visitation plan. Your agreement may include terms or requirements that you must comply with in order to seek a modification. If your agreement has been entered as part of your divorce order, your state family court will have rules in place regarding how and when modifications may occur. In some states, you may not seek to modify a custody order for two years following its initial entry unless you can show that your child is endangered by the ordered custody arrangement. You should consult a family law attorney with experience in custody issues for specific answers to your particular situation.

Q: Can I prevent my ex-spouse from seeing the children if support hasn't been paid?

A: No. Custody and support are separate considerations and even though lack of support can be financially devastating, it really is not in your child's best interests to make time with their other parent contingent on payment. If your child support is seriously behind, you should contact an experienced family law attorney or your state or county's child support and enforcement office.

Q: I have received a job offer in a different state. What happens to the custody and visitation order entered in my divorce?

A: It depends upon the rules in the state where the original custody order was granted and the reasons for the move. Some states automatically allow parents with primary custody to move from state to state. Other states require approval from the non-custodial parent or a court before allowing the move. When the move is contested, the court will consider things like advantages to the child from the move and the extent to which visitation can be restructured in considering the request. Parents seeking to change custody arrangements because of a planned relocation should contact an experienced family law attorney for advice and guidance.

Q: The judge in our divorce case has ordered a custody evaluation. Should I be worried?

A: No. Custody evaluations are a regular part of any contested custody case. You should cooperate fully with the evaluation and share any concerns you may have regarding issues that arise during the evaluation with your attorney.

Q: What is parental alienation syndrome?

A: Parental alienation syndrome is a condition that occurs in children of divorce when one parent (usually the person with primary custody) seeks to create a singular relationship with their children. The other parent is excluded through a variety of conduct and, as a result, the children no longer wish to have contact with that parent. All positive feelings are attached to the parent doing the alienating and all negative feelings are associated with the excluded parent. Courts are aware of the syndrome and look harshly upon parents who foster negative feelings about the other parent in the children when making custody and visitation determinations.

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