In any dispute over custody of children, both parents have equal rights to seek custody. If you are divorcing the other parent and you do not agree about where the children should live, a court will decide custody in your divorce proceeding. If you are not married to the other parent, one of you can file a custody action in family court to resolve any custody disputes. A judge must decide what custody arrangement is in the child’s best interests. If you have serious concerns about who will get custody, you should consult with an attorney.
There are two aspects of custody: legal custody and physical custody. The parent with legal custody is responsible for making important decisions concerning the child, such as where the child should go to school and what kind of medical care the child should get. The parent with physical custody is the parent the child lives with most of the time. This parent is called the custodial parent and the other parent is called the non-custodial parent. Parents can also share physical and/or legal custody jointly.
Custody arrangements can vary greatly depending on the needs of the children and the relationship of the parents. The court does not have to make the same decision for physical and legal custody. Often parties have joint legal custody, but one party has primary physical custody.
Custody mediation - When there is a dispute about custody of the children in a court action, the court will refer the parties to mediation to see if a court mediator can help resolve the issue. If you and your spouse have a history of domestic violence, the judge cannot send you to mediation.
Court Investigations - The court can ask the probation division or other court staff to conduct an investigation of the parties and their homes and file a report with the court.
Possible Custody Arrangements:
Joint physical custody - The child lives with each parent for similar amounts of time during the year. In this situation, both parents have day-to-day responsibility for the child.
Sole physical custody - The child lives most of the time with one parent. The other parent will generally have a schedule to visit with the child.
Joint legal custody - Both parents are involved in making important decisions concerning the child’s education, medical care and similar issues. Both have access to the child’s school and medical records.
Sole legal custody - One parent is responsible for making important decisions concerning the child
How the court decides custody
Custody decisions are based on the child’s best interests. The court will look at a number of factors, including:
- The parents’ ability to agree, communicate and cooperate;
- The child’s relationship with the parents and siblings;
- Any history of domestic violence;
- The child’s safety, needs and preference;
- Each parent’s ability to take care of the child;
- The child’s education;
- The amount of time each parent has spent with the child;
- The parents’ employment responsibilities;
- The age and number of the children; and
- Any other factors the court finds helpful.
Decisions involving custody can be changed by the court if the parties’ circumstances change. The party seeking to change custody will need to file a motion with the court asking to modify the custody order. That party will have to demonstrate that the parties’ situation has changed in order for the court to consider the motion. If circumstances have changed, the court will need to decide what custody arrangement is in the child’s best interests at this point in time.
The non-custodial parent will almost always have visits or parenting time with the child. Visits will only be restricted if the court believes that the non-custodial parent will harm the child. In that case, the court may order that the non-custodial parent have only supervised visitation with the children. In extreme situations, the court might cut off visits altogether until circumstances change. Decisions about visitation are based on what is best for the child. Visitation can also be changed if the parties’ circumstances change.