Of all the difficult aspects of divorce, the potential of a custody battle is probably the most frightening. While both parents generally want the best for their children, it is often difficult for the parties to agree on what is best. It can take a court several years to make a custody determination, often with a small army of social workers, attorneys, and child psychologists, at a devastating emotional and financial cost to both parents and children alike.
There are several different types of “custody,” all of which must be understood before the parties attempt to reach a parenting and custody agreement.
The parent with which the children reside on a daily basis is referred to as the “residential” parent and is said to have “residential” or “physical” custody of the children. Unless circumstances involving abuse or neglect exist, the parent with whom the children do not reside, the “non-residential” or “non-custodial” parent, is generally entitled to liberal and reasonable visitation with the children. Residential and physical custody are determined only by where the children reside and have no bearing on the rights each parent has to make decisions regarding the children.
Legal custody refers to the right of the parents to make decisions regarding the children’s welfare. There are two types of legal custody:
When the parties have joint legal custody of the children, both parents jointly make decisions involving the health, education, and religion of the child. Most courts will not award Joint Legal Custody to the parties unless they can show an ability to communicate and cooperate amicably regarding the child. When the parties cannot agree on an important decision, they must generally submit to mediation or ask a judge to resolve their dispute.
Where parents are unable to make decisions jointly, the court will choose one parent to have Sole Legal Custody of the children. This means that one parent will have the sole right to make all decisions regarding education, health, and religion. In such situations, the court will often order that the parent with Sole Legal Custody discuss and consider the other parent’s input prior to making any decisions. A parent with Sole Legal Custody almost always has residential custody of the children as well.
Once frowned upon by the courts, “shared” or “split” custody has once again gaining ground as a happy medium for parents who refuse to give up legal or residential custody of their children. In shared custody situations, the parents share both legal and residential custody of the children, with the children spending approximately fifty percent of their time with each parent. Typically, a court will never order shared custody, as it requires two parents who are committed to cooperating on a daily basis in the best interests of the children. However, if the parties agree that shared custody is in the best interests of their family, the court will usually not object. Shared custody works best when the parents live near each other, preferably within walking distance, are both committed to taking on the role of primary residential parent, and are willing to establish two separate but equally loving homes in which the children are largely free to move back and forth at will.
When one parent is awarded primary physical custody of a child, the other parent is entitled to “reasonable and liberal visitation.” What constitutes “reasonable” visitation can vary greatly, depending on the age of the child and the circumstances of each individual case. While some judges are willing to simply state that a parent is entitled to “reasonable visitation” in a divorce decree, more and more judges are insisting that every parenting agreement include a detailed visitation schedule.
It is extremely difficult to deny visitation to a parent. Even in situations where the child had been the victim of abuse, the non-custodial parent will often be awarded visitation in the presence of a visitation supervisor. In order to prevent visitation by a parent, the custodial parent much meet the high burden of showing that visitation is not in the best interests of the child.
Every state currently has some type of law allowing for grandparents to petition the court for visitation with their grandchildren. However, courts typically give great deference to a parents’ decision to curtail or prohibit visitation by grandparents. Accordingly, many of the grandparent visitation laws are restrictive, allowing grandparents to seek visitation only in cases where the parents are divorcing or where one parent has died. Even in such situations, the grandparents typically must satisfy the burden of proving that not having visitation with the grandparents is harmful to the child.