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Child Custody and Visitation 101

Many of the cases we deal with involve questions regarding custodial issues surrounding children. These issues generally include where and who the children will live with and, if they are going to live primarily with one parent, what access the other parent will have to the children.

Types of custody

Joint legal custody: this custodial arrangement provides that each parent has a right to be consulted about important matters concerning the children. Joint legal custody is generally awarded to most parents. It presumes parents can set aside their own personal differences, at least to the extent necessary to co-parent their children. An award of joint legal custody has nothing to do with physical placement of the child.

Sole legal custody: in this form of custody one parent is given the sole right to make decisions concerning the child(ren). It is rarely granted. The most common examples where sole legal custody is awarded is where there has been serious abuse of a child by a parent or a pattern of domestic abuse. Generally a pattern of domestic abuse is not established due to one incident of abuse. An award of sole legal custody has nothing to do with physical placement of the child.

Physical placement of children

Generally there are two types of physical placement. Primary physical care refers to a custodial arrangement where the child(ren) live primarily with one parent and spend time at the other parents home as agreed to by the parties or pursuant to terms set forth in the parties' Decree. Shared physical care (aka "50-50 care") refers to an arrangement where neither parent is primary custodian of the child(ren), each parent having parenting time with the children approximately half the time.

A 3rd type of physical placement seen in cases where there are at least 2 children is split or divided physical care where some children live with one parent and other children live with the other parent. Split physical care is generally disfavored; the most common example where it may happen is when children are of very different ages.

Principals applicable to custodial placement

The subsequent are a few of the basic principles courts follow, this list is not exhaustive.

1. The ""best interests of the child" is the primary guide for determine awards of custody and visitation. Generally, whenever possible the court favors making custodial arrangements which will cause the least disruption in the children's life.

2. There is no presumption for shared physical care, but the parent who objects to shared care must show reasons why shared care would not be in the child's best interest. As a general rule, not wanting to agree to a shared physical care arrangement is not sufficient. History is the best guide in determining whether shared physical care may be awarded; if the prior custodial arrangements looked like shared physical care then there is a greater probability of it being awarded by the court than a situation where one parent has historically provided most of the care for the children.

3. There is no presumption favoring the mother, even if the children are very young.

4. The courts detest instability of a parent, whether it be physical, emotional, mental, or related to substance abuse, particularly when there is a showing that the parent's instability negatively impacts the child.

5. The courts expect parents to seek the welfare of their children before their own. Woe to the parent who places the children in the middle of their dispute with the other parent by denying visitation, speaking poorly of the other parent in the child's presence, or otherwise interfering with the parent child relationship.

6. Post separation, but pre-Decree parents do tend to be judged by the company they keep.

Visitation principals

If one parent is designated as the child's primary care giver the law seeks to afford the other parent frequent and liberal visitation. The Judge will expect parents to set aside their differences and work together to insure the child has a good relationship with both parents. As a general rule the law presumes frequent access to the other parent. The following principals are generally followed by the courts, as before this list is not exhaustive.

1. Where both parents live close to one another they may be expected to share transportation responsibilities.

2. Generally the custodial parent cannot dictate who is present during the visitation or where the visitation will occur.

3. Generally, unless otherwise ordered a non-custodial parent can designate another responsible adult to pick up or drop off children. This means grandma, grandpa, an Aunt, an Uncle or another trustworthy adult known to the children is probably okay, an 18 year old ""friend" of the other parent who the children don't know not so much.

4. A custodial parent must've reasonable in terms of waiting for a non-custodial parent, particularly if they have been advised of a delay.

5. A custodial parent cannot withhold visitation be user they believe the other parent is somehow violating another provision of the decree, including non-payment of support. Not allowing the other parent their visitation is generally a very bad idea, it could lead to a parent being held in contempt of court and be required to pay the the parents attorney fees, being incarcerated or in the most extreme cases losing custody of the child(ren).

DISCLAIMER: The information contained herein is for educational or informational purposes only. It is NOT intended to serve as legal advice. The facts and circumstances in any one individual case may result in a different result than what is suggested here. Prior to signing ANY legal document the reader is strongly advised to consult with an attorney of their own choosing.

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