Custody / Visitation

Custody can be composed of two separate components, legal custody and physical custody. A parent who has legal custody has the power to make major decisions regarding their child's health, safety, welfare, and education. Physical custody is the amount of time the child is in a parent's presence and the ability of that parent to supervise the child and make day to day decisions for the child.

Factors Considered by the Court During a Custody Determination

The overriding concern of the court is always the question, "what is in the best interest of the child?" In making this determination, the court will consider many factors and has a wide range of discretion as to how these factors are weighed.

Some of the factors which the court has considered in making a custody determination are: (1) physical and emotional environments; (2) the age of the children; (3) existence of moral atmosphere in house; (4) the physical and mental health of parents, (5) personal safety of the child; (6) preference of the child, (7) prior behavior of the parents, including histories of abuse, (8) the parent's ability to care for the child, (9) the importance of being brought up within the family in a religious manner and other factors contributing to the general welfare and happiness of the child. Once the court decides which parent should have custody, there various custody arrangements which the court may rule : (1) sole physical and legal custody; (2) sole physical custody with joint legal custody, and (3) joint custody. It should be stated at the start that "joint" does not necessarily mean equally shared. When custody, either legal or physical, is referred to as "joint" it only means that both parties share privileges although not necessarily equally.

Once a custody arrangement is established, either party may request to modify the custody arrangement due to a change in circumstances which occurred from the time of the original custody decision. The party applying to modify the custody arrangement will have the burden to show how the change affects the child's welfare. Keep in mind that a personal belief that it would be in the child's best interest to be in your custody is not sufficient. The court already determined that it was in the child's best interest to be in the custody of your former spouse. The moving party must show that something has happened which the court did not consider when it made its original determination.

Visitation

A parent has the right to see his/her children and this right is constitutionally protected. Very rarely will a parent be denied visitation privileges with his/her child. If a parent is not allowed to have visitation rights, it must be proven that a child in the presence of that parent will cause emotional or physical harm to the child and that no other alternatives short of terminating visitation rights.

The variety of visitation schedules is endless. Each couple can arrange for whatever visitation schedule they believe will best serve their child's needs. Some of these schedules may include supervised visitation, unsupervised visitation, non-overnight visitation, overnight visitation, vacation periods, holiday visitation, summer visitation, etc. These schedules are set either by consent of the parties, or a showing that the proposed schedule is in the best interest of the child.

A common problem with visitation is when one party fails to comply with the visitation schedule. It is important to remember that visitation schedules are enforceable by the court. The non-custodial spouse can go to court and obtain a court order directing the custodial spouse to comply with the visitation schedule and sanctioning the custodial spouse for failure to comply. These sanctions can range anywhere from a fine, to make-up visitations, to reductions in alimony, to jail time. In some circumstances, the court will even transfer custody, but only as a means of last resort. The only sanctions which are not authorized by the court are those relating to child support. Child support and visitation are not dependent on each other. It would be unfair to penalize your child for the actions of your former spouse.

Visitation With Grandparents

Grandparent visitation is still a relatively developing area of law as our society continually redefines what constitutes a family. In general, grandparents may apply for visitation with grandchildren. If both of the grandchildren's parents are living and are adults or emancipated minors, then the children's parents have the ultimate say in whether a grandparent may have visitation with the child. If one of the parents is not living, the grandparents may seek visitation. This right to visitation will continue even if the living parent has remarried and a new spouse has adopted the child. Generally, however, it is difficult for grandparents to obtain visitation rights with grandchildren because of a parents' right to parent a child as they wish. Also, if the parents of the grandchild are minors and are not emancipated then the grandparent shall be able to apply for visitation if he/she is able to demonstrate that visitation would be in the grandchild's best interest.