When parents divorce, the divorce decree will specify with whom the children will live, and how often and under what circumstances the other parent will visit with the children. Often, parents work out these arrangements between themselves, either voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the “best interests of the child.”
In some situations, physical custody is awarded to one parent (sole custody). However, often the custodial parent has “primary physical custody” and shares “legal custody” of the child with the non-custodial parent who has “secondary physical custody” or “visitation”. “Legal custody” includes the right to make decisions about the child’s education, religion, health care and other important concerns. When one parent is awarded sole physical custody, the other parent is granted visitation, either according to a clear schedule of dates and times, or on a “reasonable” basis. If allegations of abuse have been raised against the non-custodial parent, any visitation granted may be subject to supervision by a neutral third party. Grandparents and stepparents may also be entitled to visitation privileges.
Some parents have chosen a joint-custody arrangement in which the child spends an equal amount of time with both parents. Since joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child’s sake. Another option is split custody, in which one parent has custody of one or more of the parties’ children and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.
When the child’s parents are unmarried, most state laws require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father may have difficulty gaining custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents or prospective adoptive parents.
In deciding who will have custody, the courts consider various factors. The overriding consideration is always the “best interests of the child.” Often, the main factor is which parent has been the child’s primary caretaker. If the children are old enough, the courts may take their preference into account in making a custody decision. Once entered, a custody award can be changed by the court if the parent’s or children’s circumstances have changed.
Some commentators have criticized the courts as being gender-biased, since many custody awards are in the mother’s favor. Others respond to this criticism, however, with the fact that historically mothers have been, and in many cases continue to be, the children’s primary caregiver, so the higher number of awards to mothers is appropriate. As more fathers become more actively involved in their children’s care, there likely will be more custody awards to fathers. Because custody and visitation decisions involve such important considerations and impact so many lives, the assistance of an experienced lawyer is an essential element of the decision-making process.
Please contact my office if you need more information on this issue.