Child Custody

The issue of child custody is often one of the most difficult issues in a divorce. Child custody is not merely the right to live with the child on a day-to-day basis. It can also include the right to make decisions about the upbringing of a child. Child custody decisions traditionally favored the mother, but that has changed dramatically.

Most states now have child custody statutes that require the court to consider the “best interests of the child.” These statutes require the court to consider several factors when making a child custody decision,

including:

  • The wishes of the child's parent or parents as to custody

  • The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference

  • The intimacy of the relationship between each parent and the child

  • The child's adjustment to home, school, and community

  • The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity

  • The child's cultural background

These statutes divide custody into physical custody and legal custody. Physical custody refers to the right to live with the child. The parents may alternate physical custody if the court finds that is in the best interests of the child.

Legal custody is the right to make decisions about the child's upbringing and medical care. Traditionally, legal custody and physical custody go hand in hand. In recent years, however, courts prefer to grant joint custody. Under this arrangement, one parent is awarded physical custody of the child, but the parents share legal custody. Under joint custody, the parent share responsibility for major decisions about the child.

The parent who does not have physical custody is allowed visitation rights. Detailed visitation arrangements are often included in the settlement agreement or included in the court's decree. The timing and conditions of visitation can be some of the most difficult issues to resolve. Many courts refer recalcitrant parents to family mediation to resolve these issues. The court may order supervised visitation if it finds that visitation will endanger the safety of the child. Visitation rights are not contingent on payment of child support.

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