Family Law

CUSTODY AND VISITATION
What You Need To Know

Divorcing couples are often able to agree on which spouse will provide the primary caregiving to their minor children and when the other spouse will visit with the children. However, when they are not able to decide the courts are faced with making those decisions.

When a court is faced with the decision of custody, the judge gives the "best interests of the child" the highest priority. The best interests of a child are dependant upon many factors, including:

• the child's age, gender, mental and physical health



• the mental and physical health of the parents



• the lifestyle and other social factors of the parents



• whether there is any history of child abuse



• the love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance



• the parent's ability to provide the child with food, shelter, clothing and medical care



• the child's established living pattern (school, home, community, religious institution)



• the quality of the schools attended by the children



• the child's preference, if the child is at least 14 years old, and



• the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.

Both parents are given equal consideration in this matter. No longer are children automatically awarded to the mother. Courts determine custody on the basis of what is in the children's best interests without regard to the sex of the parent. As it turns out, divorcing parents often agree that the mother will have primary custody after a separation or divorce and that the father will exercise reasonable visitation. An increasing number of parents are agreeing, however, that they will share legal custody and cooperate as much as is practical, even though one parent may have more actual days with the child than the other.

If divorcing parents can look beyond the "labels" --- "joint" custody, "sole" custody --- and consider what kind of living arrangement best suits the children's needs as well as the parent's work and travel schedule, the parents can then cooperate with each other to negotiate specific visitation periods and parenting provisions that enables each parent to have significant contact with their children.

To avoid future confusion and misunderstanding, courts require that the parents work out a detailed parenting plan which sets the visitation schedule and outlines who has responsibility for decisions affecting the children. Visitation schedules address not only the weekly arrangement for phone calls and personal time together, but also includes such details as who has the children on the parents' birthdays, children's birthdays, all holidays, and summer vacation.

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