Child Custody

Practice Area

Child custody is often the most contentious issue in a contested divorce. In any separation, divorce, or contested custody battle where the parents are unmarried, there is physical and legal custody that has to be resolved. Physical custody or with whom the child is to reside can be with both on equal terms, shared on a percentage basis, or be solely with one party.

Legal custody refers to decisions made by one or both parties regarding the child’s education, health care, religious education, and general welfare.

When a divorce is initiated, the court will make a temporary order granting joint legal and physical custody if the parents are married, unless it is not in the child’s best interests because of evidence that one party abuses drugs or alcohol or has a history of domestic abuse or violence, or the parties have shown an inability to communicate with each other in matters concerning the child. There is no presumption that favors joint physical or legal custody in a final court decree.

If the parents were unmarried, the court will generally issue a temporary order awarding sole physical and legal custody to the mother until the court decides otherwise.

Custody can be awarded in the following manner:

Sole physical custody
Sole legal custody
Shared physical custody
Shared legal custody

If you have sole physical or legal custody, then you alone have the right to make daily and material decisions about the child’s welfare and needs. If there is shared physical custody, the arrangement may be equal parenting and living time at the parties’ respective homes, or one parent is the primary custodian with the other having liberal visitation rights. If joint physical is granted, it is usually with joint legal custody.

A court can limit or deny visitation rights to the non-custodial parent if that person has exhibited abusive conduct toward the child. Even a single behavioral incident of serious injury or the threat of it, or of sexual assault, will lead to a denial of visitation and generally a protective order will be issued.

Parents who have been denied visitation can have their rights restored if they participate in and show progress in counseling and therapy. Limited or supervised visitation with a social worker or court officer at the home or safe location is usually the first step before full and unaccompanied visitation is granted.

Parenting Plans

Whether the parties are able to decide on permanent physical and legal custody or not, they will have to submit a joint or separate parenting plan. The parenting plan indicates:

Who is the agreed or proposed primary custodian
The visitation schedule
How holidays, birthdays, vacations, and other special events will be handled
The manner in which the parties will make legal decisions regarding the child’s education, health care, religious education, and general welfare
How to resolve disputes

A court can accept or reject the joint or separate plans or order a different custody and visitation arrangement.

A judge has wide discretion in awarding custody to either party. A judge will generally weigh the following factors:

The emotional relationship between the child and parent
Each of the party’s educational level
Level of income for each parent
Each of the parents’ parenting skills, temperament and character
If there are issues of alcohol and drug abuse, sexual assault, or violence

Alternative Resolution

In contested custody cases, the court offers alternative dispute resolution where a mediator attempts to work out a satisfactory resolution. There is also conciliation where the parties and their attorneys meet to work out arrangements in lieu of litigation.

Call Snook Law if you and your spouse or other parent are contesting custody in any form. A highly experienced child custody lawyer from Snook Law can explain your legal rights, options, and provide assistance in arriving at a satisfactory resolution or will undertake litigation if necessary.