Child Custody and Visitation

Legal and physical custody

There are two main kinds of Child Custody: sole custody and joint custody. Sole custody gives one parent the right to make all decisions for the minor child. The sole custodial parent may consider the non-custodial parent’s opinions but does not necessarily have to follow them unless the parties agree otherwise. Joint custody gives the parents the right to make major long-term decisions affecting the minor child's welfare, including religious, medical and educational decisions. Residential or physical custody, designates where the child will actually live.

Visitation or parenting time

The “best interests of the child” standard regulates custody or visitation matters involving children. In most cases the non-custodial parent is given parenting time with the parties’ minor child. There is no one standard visitation arrangement. Some parents alternate weekends, holidays and vacations and have parenting with the children one evening during the week; others alternate weeks with the children and others alternative months; others divide the children’s time unequally but in a manner that meets the needs of each particular family. The custody order may be modified if circumstances warrant.

The court process in contested custody cases

If the parents do not agree on major issues regarding the arrangements (custody or visitation) for the children after divorce or if there is a history of domestic violence between the parties, the case is “contested.” When the parties do not agree on custody, the court will require that they attempt to resolve their difference through mediation, custody evaluation(s), and/or the appointment of an attorney to represent the children.

Mediation: Mediation is when the parents meet with a neutral third party to try to reach an agreement. A mediator is a mental health professional or attorney who is an expert in communication. When parents can't agree on issues of custody and visitation, the court will require the parents to participate in mediation.

A mediator facilitates communication between the parties and helps them reach agreements. A mediator does not give legal advice, even if that mediator is a lawyer. A mediator does not listen to both sides and decide who is right or wrong. Often, compromise can be reached when the emotions are taken out of the discussion and the focus is redirected to the problem that must be solved.

Custody evaluation: Sometimes the court will appoint a 604(b) evaluator to investigate and recommend custody and visitation. The investigation may include interviews with the parents, the children, their teachers, their day care providers, neighbors, doctors, and anyone else who is significantly involved with the children. The investigation usually includes psychological testing performed on both parents. The 604(b) evaluator usually writes a report and makes recommendations to the judge, which can be helpful in reaching an agreement. If no agreement is reached, and the custody or visitation dispute must be decided by the court, the non-agreeing party has the right to appoint a 604.5 psychological evaluator who recreates the previous investigation and makes his/her evaluation and recommendations regarding custody and visitation. This process oftentimes creates a huge financial and emotional burden on the entire family.

Lawyer for the children: The court may appoint a guardian ad litem, attorney for the child, or child’s representative to represent the children or look out for their best interests in a custody or visitation dispute. The roles of each professional vary but they are all charged with providing the court with information about the best interests of the children.

Trial

If the parents are still not able to settle custody and visitation issues after investigation, negotiation, and mediation, these issues are presented to the court for decision in a trial in which witnesses are called and arguments are presented. Then the matter is out of the parents' control as the judge decides what arrangement to impose on them.

How can I minimize the negative effects of the divorce on my children?
Always remember that although a marriage may end, parents are forever. Focus on your goal of creating a family without the negative impact of divorce and remember the following:

It is in the children’s best interest to have two parents actively involved with them and their upbringing and actively involved in the rights and responsibilities of parenting – unless extenuating circumstances do not allow this to happen;

Both father and mother shall do every, thing in their power to foster the children’s love, respect, and affection toward each parent;

Mother and father shall do everything in their power to create and sustain an environment that promotes the children’s healthy physical, mental, emotional, moral and social growth and development;

Father and mother shall cooperate fully to implement relationships that foster this goal and will give the children the maximum feeling of security and love possible under the circumstances;

The parent’s cooperation includes exchanging information about the children’s well being in all respects and working to maintain compatible parenting styles and rules to the extent reasonable and necessary for the children’s well-being, while recognizing and respecting the fact that each of them has a different parental style;

As a family, mother and father are committed to living with integrity, to providing the children with a stable environment where they feel safe and cared for, to making sure the children know that they are loved no matter what and that they can count on their family to be there; and

The parents both intend to allow the children the freedom to be themselves and live their own truth, to foster authenticity.

The attorneys at our firm have successfully litigated several cases and obtained favorable judgments for our clients – including interstate child custody disputes and defending against Parental Alienation Syndrome (PAS) in child-custody disputes. We would be honored to assist you in resolving your current family situation.