Child Custody Law Handbook

What Is Child Custody Law

The term "child custody" usually refers to the child's parent who has the right to spend the most time with the child and has the most responsibilities and rights associated with the child. Although sometimes a person who is not the child's parent may have these rights and responsibilities, these arrangements are usually referred to as "guardianships."

Types of Child Custody

Although most people believe that child custody refers to physical possession of the child, there are actually two different types of custody: physical custody and legal custody.

Physical Custody

Physical custody refers to the right of the parent to have the child live with him or her. If the child primarily resides with one parent, this parent may have sole physical custody. If the child spends significant amounts of time with both of his or her parents, the child may have joint physical custody. A parent can have joint physical custody of a child and not have the child exactly 50 percent of the time. Joint physical custody is more feasible when the parents live near each other because they are often able to establish a more stable environment for the child.

If one parent has sole physical custody, the other parent may be awarded visitation with the child.

Legal Custody

Legal custody refers to the right of a parent to make major decisions regarding the child. This usually includes decisions regarding the child's health, education, extracurricular activities and religion. In many states, the courts presume that awarding joint legal custody is in the child's best interests. A parent who believes that the other will not make responsible decisions on behalf of the child or who significantly disagrees with the other parent may petition the court for sole legal custody.

When parents have joint legal custody, they are expected to cooperate in order to make joint decisions about the child's upbringing. Even though there may be some bitterness or ill feelings between the parents, it is generally best for the child for the parents to work together.

When determining whether to grant sole custody or joint custody, the court does not have to provide the same award for the different types of custody. For example, a judge can order joint physical custody but sole legal custody to one parent. Likewise, the court can order joint legal custody but award sole physical custody of the child to one parent.

Joint Custody

The current trend of many courts and legislative bodies is to recognize the importance that each parent plays in the child's life. Many states have presumptions that the best interest of the child is served by awarding joint custody. In these situations, the parents may be granted joint custody unless one proves that the other is unfit, such as by showing proof of child abuse, neglect or substance abuse.

One of the primary considerations when determining how to split up parenting time with joint custody is the parents' work schedules. Often, this helps to determine the parenting schedule. For example, a parent who works during the week may have parenting time during the weekend. A part-time employee may have parenting time during non-work hours.

Some common arrangements that courts order include:
·Separating the children by the week: Children stay at the first parent's home on Sunday-Wednesday and the second parent's home between Thursday-Saturday.
·Alternating months: The parents stay at the first parent's home in January and the second parent's home in February.
·Alternating six months: The parents spend January through June in the first parent's home and July through December in the second parent's home.
·Weekends and holidays: The children spend the school year with the first parent and weekends, summer and holidays with the other parent.

Joint custody arrangements work best for parents who can cooperate together and work out an agreement that addresses the family's needs. It often benefits the children who have more time with each parent while ensuring that both parents remain active parts of their children's life. If a parent does not cooperate with joint custody, the other parent may seek to enforce the order by having the court find the non-compliant parent in contempt of court.He or she may also seek to modify the order by asking for sole custody.  

Even when parents have joint custody, one of the parents may still be required to pay child support to the other parent. Child support formulas often take a number of factors into consideration when determining how much child support should be awarded. The amount of parenting time may be one such factor.

Determining Custody

There are generally two types of ways that custody decisions are made: by agreement or through contested hearings.

Custody Agreements

Oftentimes, parents may generally agree about which parent should have primary custody of the child. They may agree that the primary caregiver continue this role after the divorce or the severance of the relationship. Alternatively, they may agree to joint custody. Even if they do not initially agree, they may come to agree through negotiations with their
family law lawyers or through mediation.


Mediation is a non-adversarial process in which the parties of a legal dispute attempt to work out a settlement of their case. A third party neutral facilitates communication, helps identify the interests of the parties and makes suggestions on possible solutions. The goal in family law mediation is to get the parents to put aside their differences, focus on their children and make a decision about their family issues without having to go through the expensive and time-consuming process of contesting the issue.

In some jurisdictions, mediation is mandated by the court before a contested hearing can ensue.

Parenting Agreement

Some jurisdictions use what is called a "parenting agreement" to outline the parents' plan on how they will designate parenting time and make decisions pertaining to the children. This agreement may take the place of a court order or be an alternative to a standard court order.

Parenting agreements can often be integrated into a court order so that they can be enforced if one of the parents does not comply with it.  Parenting agreements may contain provisions regarding:

·The general custody and living arrangements
·Specific times and dates when each parent will have the child
·How holiday time will be divided
·Financial considerations, including child support, additional child-related expenses and travel expenses
·Provisions regarding parental relocation and travel with the children
·Provisions regarding decisions pertaining to the child's education, medical needs, extracurricular activities and religion
·Any other provisions that the parents agree to

Parenting agreements may be borne out of parental cooperation or as a document produced during mediation.

Contested Custody Issues

If the parents do not agree on which parent should have sole custody or that joint custody should be awarded, they may proceed with a contested case. This process is usually commenced by one parent filing a complaint or petition that asks for the relief they are wanting, such as being granted sole physical and legal custody. The complaint is usually filed in the county where the petitioner resides or where the child resides. The other parent must be legally served with the complaint and the summons that specifies when the court hearing will be, if applicable. The other party must provide a proper response within the designated timeframe, usually 20 or 30 days. Both parties can retain the services of a family law lawyer to represent their interests in the matter.

Pre-Hearing Processes

Between the initial filing and the court appearance, there may be several processes that are involved.

Some discovery related processes include:
·Interrogatories - the parties may ask for certain information from the other party to assist in their case and preparation
·Requests for production - the parties may ask the other party to provide certain evidence, such as photographs, voicemails, text messages, email correspondence, tax returns and check stubs
·Requests for admissions - the parties may try to narrow the issues that are contested by having the other party admit certain things.

Additionally, the court may mandate mediation, meetings with other individuals such as child custody evaluators and parenting class attendance.

Child Custody Evaluations

Some jurisdictions complete child custody evaluations so that the court can gather more information about the situation and so that it can be more informed when making decisions pertaining to the child. The child custody evaluation may commence with an initial interview in which the evaluator interviews each parent to learn about the role each parent plays in the child's life and underlying issues that have led to the dispute between the parents.

The child custody evaluator may also request that each parent provide a release for certain information, including the parent and child's medical records, educational records and psychological records. Sometimes parents are required to undergo psychological testing or to take drug tests if substance abuse is alleged or suspected.

The child custody evaluator may discuss the case with other parties involved in the child's life, such as teachers, doctors, siblings and other relatives. Usually, the child custody evaluator conducts home visits in which he or she evaluates the home and the relationship between each parent and the child in the home environment.

After the evaluation is complete, the evaluator may prepare a report and submit it to the court. He or she may also provide an opinion at the hearing. Although the family court judge is usually not required to adopt the suggestion of the child custody evaluator, the judge will usually seriously consider the recommendations because they came from an objective party who saw more than he or she could in the courtroom.

Guardian Ad Litem

In some cases, the court may appoint a guardian ad litem, who is a lawyer or other individual who acts in the interests of the child. This individual represents the child and may participate in the proceedings.

Best Interests of the Child

Courts generally use the "best interests of the child" standard when determining custody issues. In order to determine what is in the child's best interests, the may consider a number of factors based on state statute or common law.

These factors often include:
·The age of the child
·The sex of the child
·The health of the child
·The health and age of each parent
·Any history of domestic violence in the home, especially that targeted at the child
·The child's preference if he is above a certain age or has the maturity to express it, depending on state law
·The relationship between the child and each parent
·Whether the child has siblings in either home
·The parent's ability to provide for the basic needs of the child
·The quality of education that the child is currently receiving
·The impact that changing the status quo would have on the child
·A history of substance abuse in the home
·Whether the parent would foster a relationship between the other parent and the child

Judge's Determination

After hearing the testimony and reviewing the evidence presented at the hearing, the judge may make a decision on the spot or after giving consideration to the case. If a judge gives sole custody to one parent, he or she may grant "reasonable" visitation to the non-custodial parent. He or she may order visitation pursuant to a certain schedule that is used in the county or may allow the parents to work out visitation in the form of a parenting plan.

Modifying a Child Custody Order

If one or both of the parents want to change the child custody order, one parent may petition the court for a modification. In some jurisdictions, the party must wait for a certain amount of time after the initial order was granted before the court will agree to hear a case to modify the order.

Some jurisdictions allow such petitions to be brought at any time while others require the moving party to show that there has been a material change in circumstance since the last order.

Individuals who would like to learn more about their rights and options may choose to contact a family law lawyer for assistance.

Individuals who would like to learn more about their rights and options may choose to contact a family law lawyer for assistance.


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