Child Custody and Visitation

Adina Katz, Esq.
Apr 14, 2017
4 min read

Both natural parents are the presumed custodians of their children. The law does not favor one party over the other. However, the law does look into the "best interest" of the child standard when deciding child custody and visitation. The best interest of the child standard looks at certain factors to determine what is best for the children. Grandparents or other relatives may seek custody, but the law presumes that the natural parent is the correct custodian over anyone else.

There are several different types of custody:

1. Temporary Custody- It is also known as "pendente lite," which literally means "pending the litigation." Temporary custody is based on the best interest of the child standard. Pendente lite custody is only temporary until the court holds a hearing. You can file for this in your divorce complaint.

2. Legal and Physical Custody- Legal custody involves the right to make long-term plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. Physical custody involves spending time with the child and making decisions about the child's everyday needs. The court may order legal and physical custody in a number of ways.

A. Sole Custody - A person may be granted sole legal custody, sole physical custody, or both.

B. Split Custody (of 2 or more children) - Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the factors that may point to this result are ages of the children and their wishes.

C. Joint Custody - Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.

a. Joint Legal Custody is where the parents work together to share care and control of the upbringing of the child, even if the child has only one primary residence. Additionally, one parent may be given "tiebreaking" authority (the final word in cases of disagreement), or each parent may have certain areas of decision making authority.

b. In Shared Physical Custody the child has two residences, spending at least 35% days, of the time, or 128 days, with each parent.

The Factors the Judge considers in deciding the "Best Interests of the Child" Standard is as follows. No single factor is most important. This is a list of some, but not all, of the factors, that courts will consider.

• Primary Care Giver - Who is the person who takes care of the child? Who feeds the child, who arranges day care? Who does the child turn to when they get hurt?

• Fitness - What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party's spouse, or any child residing within the party's household (including another child).

• Character and Reputation

• Agreements - Is there a custody agreement already in place?

• Ability to Maintain Family Relationships - Who will be best able to help the child keep family relationships? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any bad action on the part of the other parent?

• Child Preference - The decision of the court may be reversed on appeal if the judge will not hear the child's preference. However, the judge may choose to interview the child outside the presence of the parents. A child as young as 5 or 6 years of age may be heard. Though it is rare, the court will hear from a child under 7 years. The child's maturity, and whether the child can tell the truth from fiction will guide the decision whether a child may be heard. A child of at least 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the court has the power to appoint an attorney for the child in contested cases.

• Material Opportunity - Which parent has the financial resources to give the child more things?

• Age, Health and Gender of Child

• Residences of Parents and Opportunity for Visitation - How close do the parents live to each other? How close do they live to members of the child's extended family? Which parent lives closest to the child's school and social circle?

• Length of Separation- how long has the parent been separated from the child?

• Any Prior Abandonment or Surrender of Custody - Is there a history of one parent walking out and leaving the other parent to cope with the child and the home?

• Religious Views - These will be important in the court's decision only if you can show that religious views affect the physical or emotional well-being of the child.

• Disability - A party's disability is only relevant to a custody decision if the disability affects the best interest of the child.

Other factors the court considers are:

• Willingness to share custody;

• Fitness;

• Child's relationships with parents;

• Child's preference;

• Ability to stabilize child's school and social life;

• Closeness to parent's homes (primarily a factor during the school year);

• Employment considerations (e.g. long hours, extensive travel, etc.);

• Age and number of children;

• Financial status;

• Benefit to parent