Child Custody – An Overview
Different states approach the issue of child custody in different fashions. However, even with this as the case, there are several constants in the arena of child custody. Anyone that is faced with having to go through a custody dispute should be familiar with these issues and have an understanding of how the process works. As well, never attempt to represent yourself in a child custody dispute – hire a qualified child custody attorney.
For instance, there are two basic concepts relating to the custody of a child – legal and physical custody. In basic terms, legal custody relates to how decisions concerning the child or children’s health, education and welfare will be made. If one parent has sole legal custody, then that parent can make all decisions relating to the children. Many times decisions in a sole legal custody arrangement can be made without consulting the other parent. There are also varying degrees of legal custody. For instance, one parent may have legal custody of a child, but they may also have a duty of consultation with the other parent to inform them prior to any decision being made. There may be a joint legal custody arrangement where both parents consult to determine how decisions relating to a child will be handled; however, it is quite common that one parent will have decision making authority as the Court’s typically want to avoid a situation where the parties will become deadlocked and can’t reach a decision.
The second concept applicable to child custody is the issue of physical custody. This concept determines where the child or children will physically be located at any given time. Sole physical custody means the children will be primarily with one parent and will have visitation with the other parent. The other end of the spectrum is true joint physical custody where the parents have equal time with the children. There are also numerous other possibilities for physical custody in between the two scenarios addressed above. However it is not always as simple as deciding on a custody arrangement and having the other parent agree to the arrangement.
The problem with custody disputes is that most people fail to consider any shortcomings they may have and instead focus on the reasons the other party shouldn’t be able to spend time with their children. While I am an advocate that as long as there is no disruption to the children (I realize this is a lofty qualifier!), the ideal situation would be as close to equal time with both of the parents as possible. This is best for the parents and ultimately best for the children.
The matter of a separation or a divorce does not ever change the fact that a child has two parents. While there will be situations where one parent does not desire to spend time with their children or, even where they won’t spend time with their children, when otherwise fit parents want to spend time and be involved with their children, the children are best served by allowing this to happen. I am not saying that all custody arrangements should be equal, joint arrangements, only that this would be ideal for fit parent. At the end of the day, the actual approach is that each case needs to be considered individually based only on the facts of that case. People start to get into trouble when they mix apples and oranges by comparing their custody case to others that really aren’t similar at all.
I should take a brief aside here to say that the focus of this article is related only to child custody and is not related to child support. More time with one parent will impact the issue of child support; however, when I refer to what is best for the child in this article, my focus is on time with parents in a custody setting.
Building upon the concepts of legal and physical custody addressed above, when parents separate or divorce, an arrangement must be entered into or ordered setting out how the parties will approach custody and visitation time with their children. While the Courts can order a custodial arrangement, it is nearly always the case that agreements reached directly between the parents holds the potential of working the best for all involved. However, the real question is what are the possibilities for child custody and visitation?
While it is still common for courts to order that a parent receive every other weekend visitation with some holiday time and two weeks in the summer, this is becoming exceedingly rare. As well, the idea that preference is automatically given to the mother in custody disputes is hardly ever used and most states have statutes overruling this doctrine. However, this being said, many times when a father loses custody, the explanation offered by the father is that the Court’s favored the mother simply because she is a woman. I find that most times in this situation there was some other reason for the decision that the father doesn’t want to admit.
Today when courts look at custody, the standard that is most commonly used is the “best interest of the child.” While there is no short definition of this concept, it is how it sounds. What is best for the child will guide the Court. As well, the Court will rarely change patterns that have developed between the parties, nor will they undertake drastic changes. As well, the court will also look at how the parties have parented their children in the past. Many times when custody disputes are decided by a court, one party complains that the outcome was not fair as they only receive minimal time with their child. However, generally in cases such as this, the actual time the party spent with their child prior to separation was minimal. Therefore, after the divorce, the time will be similar. Parents are not automatically entitled to equal time with their children if they didn’t take advantage of this when they were living with their children. It is best to remember that the Court will look at each case individually, consider the facts of the case as they presently exist and they will also consider how the parents conducted themselves prior to the separation. They will look at the available time each party has and other factors related to the child, even considering transportation to and from school or daycare. After this has been done, then a decision from all factors will be made as it relates to custody.
This being the case, it is common for what is called “standard” visitation to run from a Friday afternoon until Monday morning with an overnight in the off-week of visitation meaning that there would be an overnight sometime during the week following the non-custodial parent’s visitation. Visitation can increase from here; however, courts rarely attempt anything too creative in crafting visitation and custody arrangements. I find that the thought is that if the parties were capable of a more creative arrangement, they would have done it prior to coming to Court.
For this reason, the best way to approach the resolution of a child custody dispute is to submit the matter to mediation or arbitration. Or, even more preferential is to have the parties settle the matter themselves. This allows for more creativity in the process and also allows the parties to contribute more to the determination in a non-courtroom setting. Parties often have a “can’t wait” attitude when it comes to going to Court. They look at it as a chance to punish the other party. What need be understood is that while the Court’s are there to resolve disputes, judges have no emotional attachment to the individual cases they hear. Their job doesn’t allow for this. The result? Cases that have far reaching and deep personal application are presented to a judge in a few hours and then a Judge makes a decision that will follow the parties and their children for years to come. When the stakes are this high, it makes sense to keep the matter out of Court so a stranger doesn’t decide your child’s future. The family courts are not made to punish.
Some other arrangements that are commonly used are in custodial matters are extended alternating weekend visitation arrangements where on alternating perhaps alternating Wednesday afternoons, though sometimes Thursday afternoons are used, until the following Monday morning the children would be with the visiting parent. This allows both parents increased time for parenting and allows the visitation party to feel less like a weekend parent.
In a standard visitation situation a visiting parent may have 2-3 weeks of summer visitation, but many times visiting parents and custodial parents near equally divide the summer.
Holiday
visitation is generally divided between the two parents; however, only major holidays such as Easter, Spring Break, Thanksgiving and Christmas are typically included. However, sometimes parents, either between themselves or through mediation will include other holidays.
In the end, this article only touches on some of the major issues in child custody. However there are certain things to be remembered in this process. Simply wanting time with your children does not automatically entitle you to it. The best interest of the child and past parenting approaches will be considered along with other factors. The best thing a parent can do to ensure time with their children is to start spending time with them now. This way if ever you should unfortunately find yourself facing a separation or a divorce, you won’t be scrambling to spend time with your children. The fact is, parents should spend time with their children regardless of whether they are married or separated. Also, the best way to resolve child custody disputes is through mediation or some other alternative dispute resolution. When it is something as important as you children’s future, you want to have as much involvement as possible in determining custodial arrangements and visitation. Remember, judges are strangers and no parent likes strangers involved with their children.
