Child Custody

Just when emotions are at their highest, couples are asked to address issues around who the children will live with and at what times. They are some of the most difficult aspects of getting divorced, particularly if one parent wants sole legal custody of the child.

It should be stated here that too many people fret over the labels given to various states of custody. They can include sole custody, joint custody, shared custody, legal custody, physical custody and so forth. You should be aware that the conditions that describe custody in your final divorce decree matter more than the label they receive.

Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In most states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.

Physical custody means the right to have the child in your care and live with you. Some states award joint physical custody to both parents when the child spends significant amounts of time with each parent. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine. The same school (or school district) can make or break a joint physical custody request.

Courts can award sole physical custody where the child lives primarily with one parent and has visitation with the other. This isn't necessarily exclusionary unless the language around the order states that.

Legal custody of a child is defined as having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care and other important issues. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents. The rub with this designation is when a parent tries to, or makes decisions excluding the other parent. The recourse is to take the offending parent back to court to enforce the order. Sadly, most do not do that because of the expense and/or hassle of it all, and tensions build. You might get awarded attorney's fees, but one can't be assured of that.

One parent can be granted either sole legal custody or sole physical custody of a child. In situations where one parent is deemed an unfit parent, courts will often award sole legal and sole physical custody. Alcohol or drug abuse, or a new partner can cause this type of custody. In recent years that has been a trend where courts are awarding attempting to expand the fathers role in the children's lives and shy away from sole custody designations. Even when "sole" is awarded, courts can include verbiage that opens the door to greater involvement.

Joint custody (also known as shared custody) is a designation for couples who don't live together but they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting. joint custody can be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent), or joint legal and physical custody.

Joint Custody Agreements or Arrangements

When parents share joint custody, they usually work out a schedule according to their work requirements and living arrangements and the children's needs. In cases where the parents can't come to an agreement, the court will impose a schedule. A common schedule is to alternate weekends, and the non-custodial parent having one or two evening with the child, possibly including an overnight during the week. Other joint physical custody arrangements can include alternating months, years, or six-month periods, or spending weekends and holidays with one parent, while spending weekdays with the other. There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own.

The Yin and Yang of Joint Custody

Joint custody allows the children continuing contact and involvement with both parents, and sometimes alleviates some of the burdens of parenting for each parent. Negatives might include that children must be shuttled around, an uncooperative or angry parent can cause unneeded duress, and maintaining two homes for the children can get expensive.

Some attorneys suggest you keep records of expenses so that should you be accused of something that isn't true, you'll have records to show the court.

Visitation

Visitation is the term that traditionally been assigned to a parents right to spend quality time with their children. The term itself has generated its own controversy because it sometimes creates the impression that the parent merely "visits" with the child, as they were an uncle or a cousin. In recent years courts are using the term "co-parenting" time to describe these times. No matter what term is used, visitation remains more important to children's development than the average parent understands.

Common visitation or parenting times for non custodial parents can be:

• Alternating weekends including 3-day long weekends
• Mid-week visitation that doesn't include an overnight
• Sharing of the child during periods of school recess -winter, spring and summer
• New Year's Eve, Easter, Rosh Hashanah and Yom Kippur, Thanksgiving, and Christmas with one parent or the other in alternate years
• Father's Day with Dad Mother's Day with the Mom
• Alternate years on the child's birthday
• Telephone contact by the parent who does not have actual physical custody of the child and
• Some miscellaneous days not specifies in the decree.

Questions and answers that may help to clarify the issues:

Q. Can I move my kids out of state and then get a divorce?

A. The answer is maybe. If you can get out of town before your spouse files a restraining order to prevent you from leaving, you still have the hurdle of establishing residency. Once residency is established (often 3 to 12 months), you may be able to file divorce in that state but issues such as property division, support and custody may not be able to be decided because of jurisdictional issues. In the end, most cause themselves greater discomfort moving first.

Q. I'm going to leave my wife, my marriage and my home and file for divorce. Is it better to just leave and get settled before I get custody of my kids?

A. Slow it down there. Leaving your children like that is frowned upon by the courts. The law usually makes preserving the status quo a preference in making a custodial determination. Are you moving nearby? Parents who don't live close to each other will have a different arrangement than parents who live in the same city and school district. Shared custody arrangements can have many variations. There will usually be a primary residential parent and a non-residential parent who spends time with the child according to a standard visitation schedule. You presume you'll get custody. Unless your wife is unfit, you have a 1-in4 chance of being the custodial parent. See an attorney first.

Q. Can a court order a parent to test for drugs when determining child custody?

A. Yes, they certainly can, and do if there is cause for it. no court wants the responsibility of a custody award gone bad because it didn't check for substance abuse. In the best interest of the child, the court has a degree of latitude. Custody or visitation can be halted, suspended, delayed or terminated depending on the court's findings.

Q. If I move in with a man in the midst of a custody dispute with my ex, can that have an impact?

A. That's going to depend on a number of factors, which include whether you are fully divorced or not, and how your state views adultery, and and other divorce laws pertaining to legislated morality. It could be that courts in your state take a dim view of exposing a child to such a situation, where the state next door expresses no opinion. Check with an attorney first.

Q. My soon to be ex smokes. I have quit. Can I have the court impose restrictions on him?

A. Courts now, more than ever, look at all factors related to the "best interests of a child" in making a custody decision. This includes the air quality for the child. It isn't likely that smoking alone could cause a change in physical custody, but it sure can't help his cause. Convince him to take it outside, or better, yet, quit.

Q. My husband had our daughter last weekend, and didn't return her on Sunday. I'm frantic. What do I do?

A. Call an attorney right away. If you and your child have established residency, your state will have jurisdiction, which can prompt the court to order that he return your child. In some states this can be construed as kidnapping if you have a court order of custody.

Q. In the divorce, can I have my children's last names changed from my husband's to my married name? I want little to do with him.

A. Be very careful here. The answer is probably, but you must demonstrate to a court good reason for it. Be aware that courts have seen it all, so if your aim to simply to change names to hurt your ex, they'll see through it. Also, be careful not to alienate your kids from your ex. He is a "part" of them, and denigrating him to them denigrates a part of them.

Q. Does religion enter into the determination of child custody?

A. In general terms, it does not. Courts won't get involved in the religious beliefs, wishes and desires of parents unless a religion poses a threat to the well being of the children.

Q. My ex is many months behind on child support. Can I discontinue visitation until he meets his obligations?

A. Visitation and monetary child support are two separate legal issues, and one does not impact the other, so the answer is: you may not. You cannot alter the court-ordered visitation schedule until or unless you get court permission to do so.