Child Custody - Areas of Law

Spouses working through a divorce must create a parenting plan that specifies who has custody or visitation of the children and when. If the parents cannot agree, then either parent may petition the court for custody. Parents must petition the court which is overseeing their divorce, or if they are unmarried, their local family or juvenile court.

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Types of Custody and Visitation

The court will award either joint custody to both parents or sole custody. In most states, joint custody is preferred unless it negatively affects the child. In sole custody, the one parent is responsible for primary care of the children and the other is the custodial parent. Custody can be physical or legal. Physical custody is the actual physical care of the child, including day to day supervision and habitation. Legal custody involves decision-making rights, such as regarding the child's education, health, and welfare. The non-custodial parent usually gets visitation rights so that they still get time with their children.

Custody Arrangements and Exchanges

Parents may work out a variety of arrangements for custody and visitation. For example, they can decide to have their children alternating weeks, weekends, split weeks, summers, split holidays, or holidays alternating by odd and even years.

Parents may also arrange a custody or visitation exchange in which the parents give their children over to each other. This exchange can be before or after school, on weekends, at one parent's house, at a daycare facility, or any number of other times and places. In some cases, the court may decide to exchange plan wherein neither parent sees the other.

Modifications and "Moveaways"

After a plan is issued as an order by the court, it cannot be changed unless a party requests a modification with evidence of materially changed circumstances such as a move to another state.

Third Party Rights

Courts in some states may also consider the interests of siblings or grandparents when deciding custody or visitation. These third parties as they are termed must also petition the court.