Child Custody and Visitation

Children are delicate and need special care and attention when legal matters are involved.  Parents that separate will need to have a plan for deciding how they will share and divide their parenting responsibilities. 

Custody –

The most significant consideration in adjudicating contested child custody is the child’s best interest.  Subject to policy directives and statutory factors that must be considered, the best interest determination is largely left within the court’s discretion.  The court’s primary concern is to assure the child’s health, safety, and welfare.  Further, the court must consider the policy to assure that children have frequent and continuing contact with both parents after the parents have ended their relationship, and to encourage each parent to share in child rearing responsibilities. 

Types of Custody -

Sole custody orders

Exclusive custody – A judge may order exclusive custody giving one parent primary physical control and the right to make all decisions concerning the child such as health, residence, education, and welfare.  The other parent may have visitation rights as ordered by the court.

Sole physical custody - Physical custody determines where the child will reside.  Sole physical custody means the child will live with one parent (custodial parent) and visit the other parent (non-custodial parent). The court may grant one parent sole physical custody without the privileges of having sole legal custody.  This means that the child lives with and is supervised by one parent, subject to the other parent’s visitation rights; but the custodial parent does not have sole decision making powers.  Both parents must collaboratively participate in making decisions. 

Sole legal custody – Conversely, a court may grant sole legal custody.  Legal custody determines which parent will make decisions concerning the child's health, safety, education, and welfare.  However, unless physical custody is also granted, that parent will not have the right to make decisions with regards to the child’s residence. 

Joint custody orders

“Pure” joint custody – Under a pure joint custody plan, neither parent has sole legal or physical custody.  Each parent equally shares the responsibility of rearing the child.  They each have the authority to control and supervise the child and the child’s physical presence is shared.  

Joint legal custody – Joint legal custody means that both parents share the responsibility of making decisions regarding the child’s health, welfare, and education.  Joint legal custody may be granted without joint physical custody. In that event, while the parents share decision-making responsibilities, the child resides with only one parent. 

Joint physical custody – Joint physical custody is awarded so that each parent has significant periods of physical custody.  Joint physical custody orders are awarded to assure that the child has frequent and continuing contact with both parents.  However, this does not mean that the child’s time is equally divided among each parent.  Joint physical custody may be accomplished, for example, by an alternating week arrangement. 

Visitation of Children -

In making a custody order, the court must also grant the non-custodial parent visitation rights, unless it can be shown that visitation rights would be detrimental to the best interest of the child.  This may include instances of child abuse and domestic violence.  The amount of visitation is determined by the parents and the discretion of the judge.  Visitation plans should be specific in order to avoid potential conflicts and eliminate confusion.