Child Custody Frequently Asked Questions

As couples with children make the difficult decision to divorce, custody battles are often the most difficult and emotional issues they must resolve. These decisions are challenging for everyone, including parents, grandparents and, of course, the children. Below are frequently asked questions designed to help those who are facing these situations.

Are there different kinds of child custody?

Yes. There is physical and legal custody. Physical custody focuses on where the child will live after the divorce. Legal custody establishes which parent can make key decisions pertaining to the child’s education, medical needs and extracurricular activities.

Does child custody always go solely to one parent?

No. In fact, courts often award at least partial custody to both parents, which is called “joint custody.” Joint custody could occur in one of three ways, including:

  • Joint Physical Custody, where children spend a considerable amount of time with both parents.
  • Joint Legal Custody, where parents share in the decision-making about the child’s doctors, schooling, religious upbringing, and more.
  • Joint Physical and Legal Custody.

Do most states give custody to mothers over fathers?

Not anymore. This was typically the case in the past. However, today, no state requires a judge to award a child to the mother without regard to both parents’ fitness to serve. Most states today compel courts to decide custody exclusively on what’s in the child’s “best interests.”

If one parent moves out before the divorce, does it impact that parent’s ability to get primary physical custody?

Yes. Even when a parent leaves to escape a potentially dangerous situation, it’s unwise to leave the children behind. The leaving parent’s actions could inadvertently convey that the other parent is able to serve as primary physical custodian.

Who sets terms regarding visitation?

If a court assigns physical custody to one parent and “reasonable” visitation rights to the other, the parent with physical custody typically can determine what is “reasonable.” However, many courts ask the parents to work out a specific parenting plan regarding visitation and other decisions affecting the child as part of the custody order.

Does the court ever seek the child’s opinion?

Yes. In cases where the child is 12 or older, most judges ask to hear the child’s views on which parent he/she prefers to live with and why. The judge is not obligated to comply with the child’s request but often considers their comments very seriously before rendering a decision.

While you might be able to resolve some issues in your divorce without an attorney, you really can’t afford to risk losing time with your children.