Child Custody
Child custody can be an emotionally charged issue. The factors involved in determining custody are not based on clear cut mathematical equations as in child support. Therefor decisions about a child’s future post divorce are often emotionally based. The courts do provide certain guidelines to help resolve custody issues. A judge will primarily consider the best interests of the child in determining custody. Additionally, the circumstances of the case and parties involved will be examined.
Three primary factors are involved in determining custody, residency, legal guardianship and visitation. Legal custody (guardianship) allows one or both parents to make decisions regarding their children’s education, health care, religion and general welfare. Sole custody provides one parent the power to act on behalf of the children on an individual basis . Joint custody gives both parents equal decision making power. In many cases joint custody is a better option as it allows both parents to work together for their children’s benefit. However, even if joint custody is determined to be the best option, the child will, most likely, reside with only one parent. Physical custody defines the child’s residency. Sole physical custody involves situations in which the child lives with only one parent but has visitation with the other. A visitation schedule is agreed upon and is clearly set forth in the court order or separation agreement. In certain instances, joint physical custody, where the child resides with each parent for different parts of the year is considered. Residence in these cases does not necessarily have to be split on a fifty-fifty basis however a substantial amount of time must be spent in each parents home. Generally, joint physical custody is not considered to be in the best interests of the child.
The best case scenario involves an agreement between the parents regarding custody, residence and visitation issues clearly set forth in a written agreement and presented to the judge for his approval. However, many couples find it difficult to resolve this issues independently. If custody is contested, the court can order, or the parties themselves can agree upon, mediation. A professional mediator will help the parents negotiate an agreement regarding custody, visitation and parenting issues for their children. The best interests of the child is always considered. The parents current circumstances are of primary concern however past parenting history is also considered. If no agreement is reached the mediator will make his recommendations to the judge. Prior to forming an opinion, the mediator can interview the children, other parties legally joined to the case and individuals with pertinent information. In certain circumstances. the court can appoint an evaluator or psychologist to review the case. The evaluator will consider the best interests of the child as well as his health, safety and welfare in making a determination regarding custody and visitation. He can obtain information from teachers, daycare and medical providers and can interview the children, parents, grandparents and others legally joined to the case. The court will make the final decision as to custody. The recommendations and resulting schedule can be modified at any time since there is no finality in a contested custody case.
Although the judge has the authority to determine custody issues, a divorcing couple can form an agreement determining how their children will be cared for post divorce. The terms relating to custody, visitation and residence, as agreed to between the parties, will be set forth in the separation agreement and presented to the judge for his final approval.