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Child Custody and Visitation - An Overview

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Child Custody and Visitation - An Overview

The resolution of child custody and visitation disputes requires divorcing parents to act rationally in their child's best interests at a time when they are facing the overwhelming stress of divorce. Joint custody and sole custody, legal custody and physical custody, custody evaluations and modifications are terms with which a divorcing parent will become familiar.

Knowledgeable advice and skilled representation from an experienced family law attorney at The Law Offices of Jerome P. Ventura, P.A. in Pembroke Pines, FL, can assist you in your pursuit of a fair custody arrangement.

Basic custody terms

Custody is split into two parts, physical and legal. The court determines or approves custody arrangements for each child individually.

  • Physical custody: The actual living arrangements of the child and the rights and responsibilities associated with daily childcare.
  • Legal custody: The right to make decisions about the child's education, healthcare and religion.

Common custody solutions

Physical and legal custody can be apportioned in several different ways:

  • Sole custody: When sole physical custody is agreed upon or awarded by a family court, one parent has the right to have the child live primarily with him or her. That parent is then known as the "custodial parent" and the other parent becomes the "non-custodial parent." Sole physical and legal custody generally only occurs when there is a history of abuse and neglect, but this varies from state to state. In such instances, the non-custodial parent may be limited to restricted or supervised visitation. Many parents have arrangements consisting of sole physical custody for one parent, sharing joint legal custody, and giving the non-custodial parent generous visitation.
  • Joint custody: In joint custody, parents share responsibility for major decision-making and/or physical control and custody of the children. Parents with joint physical custody usually share legal custody, but joint legal custody does not necessarily imply joint physical custody. Parents need to be able to work together in the rearing of their children when they have joint legal custody.
  • Split custody: This is a less popular option, in which each parent takes custody of a different child.
  • Bird's Nest Custody or Bird Nesting: This unique and rare arrangement allows children to remain in the family home while parents take turns moving in and out, depending on who has custody at the time.

Custody determination during the divorce process

Questions of custody usually first arise when a divorcing couple with children decides to separate. While some couples immediately reach an agreement on short-term or long-term custody, others require court intervention. Custody may be addressed throughout the divorce process in the following ways:

  • Temporary hearing: Shortly after the initial papers are filed seeking dissolution of a marriage, the family court will hold a temporary hearing and issue an order that controls legal aspects of the parties' relationship until it grants the final divorce decree. When custody is contested, the order creates a temporary custody solution. Unless there is evidence that doing so would not be in the best interests of the child, temporary custody is typically granted to the parent who stays in the marital home. Temporary custody orders are not necessarily indicative of which parent will ultimately be awarded permanent custody. Depending on the circumstances, however, the temporary custody order may indicate which parent the court thinks is the more suitable in the long run.
  • Mandatory mediation: Many states now require that parties in a contested divorce attempt mediation. Mediation is an alternative dispute resolution (ADR) process in which divorcing couples work with a specially trained neutral third party in an attempt to resolve their disagreements. Parents may resolve child custody while keeping other issues (like property division) open for a judge to decide. Parents who determine custody arrangements through mediation can include a provision in their final divorce agreement making it mandatory to attempt mediation to resolve future custody and visitation disputes.
  • Custody evaluation: If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. A court-appointed mental health professional, such as a psychologist or a social worker, usually conducts the custody evaluation. The evaluation includes interviews with both parents and the children, observation of the children, conversations with teachers, and possible psychological testing of both parents and children. It can take four to twelve weeks to conclude a custody evaluation. When a custody evaluation has been ordered, the court usually will not enter a final custody determination until the evaluation has been completed.
  • Trial: Every state has statutes and procedures for the legal resolution of disputed child custody matters. While specific standards differ from state to state, most courts decide contested custody cases based upon a determination of what arrangement is in the "best interests of the child." Considerations that go into a best interest determination may include review of the child's age and attachment to the parent who has been the primary caretaker, parental physical and mental health, any history of domestic violence, and the child's wishes (depending upon the age of the child and the motivation for the preference).

Modifications

Once custody has been established through agreement or court order, parents may seek court involvement to modify the existing arrangement. To support a modification request, the parent seeking the modification must show a substantial change in circumstances. If the modification request is within two years of the original custody determination, some states will only consider the request if the child is endangered by the custody arrangement. Additionally, states that follow the Uniform Child Custody Jurisdiction Act will only consider requests for modification if they occur in the state in which a child has an established residence. This is to prevent forum shopping and custody-motivated child removals.

Speak to a child custody lawyer

The resolution of child custody and visitation disputes requires divorcing parents to act rationally in their child's best interests at a time when they are facing the overwhelming stress of divorce.

Early involvement by a family law attorney from The Law Offices of Jerome P. Ventura, P.A. in Pembroke Pines, FL, with knowledge and experience in child custody law, can help.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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