Today, more than 23 million American children live in a single-parent household.1 If you are going through a divorce and have children younger than 18, child custody will be a contentious issue in the process. It’s important to realize you’re not alone, and there are professionals that can help guide you through the emotional process. Child custody proceedings are complex, which is why we’ve created this guide to cover:
The types of child custody arrangements
The process of reaching a custody agreement
Potential child support obligations
Personal and emotional considerations
How to hire the right divorce attorney
Types of Child Custody Arrangements
Child custody can refer to where your children will live after divorce (physical custody), or who has the legal right to make decisions about their upbringing (legal custody). In each scenario, parents may jointly share the responsibility or the courts may award one parent solely. Below are some key terms to better understand child custody laws.
Physical custody is the right to have your children live with you after a divorce. The right may be shared by both parents in a joint physical custody arrangement or granted to only one parent in a sole physical custody arrangement.
Joint Physical Custody
Courts generally prefer to award joint physical custody to guarantee the children will maintain contact with both parents. In some states this is the default resolution, and may require a disagreeing parent to prove why their children should not spend time with both parents. For more answers to common questions, check out our divorce attorney page. Joint physical custody requires parents to share time with their children. It does not need to be a 50-50 split, but if the parents cannot reach an agreement, the courts may impose a schedule. Common arrangements include alternating weeks, months, and/or holidays at each parent’s house. Joint physical custody enables both parents to be integral parts of their children’s lives. Research supports that in low-conflict divorces, children fare better in joint custody arrangements than sole custody.2 However, for high-conflict divorces with disputing parents, joint physical custody may trap children in the middle of an emotional conflict zone.2 Here are a few questions to ask yourself regarding joint physical custody:
How will your children split time between you and your ex-spouse?
How far will you and your ex-spouse live apart?
Do you plan on relocating to another city in the future?
Are you prepared to be in touch with your ex-spouse on a regular basis?
How important is it for you to be an integral part of your children’s life?
Sole Physical Custody
In sole physical custody arrangements, the children permanently stay with the custodial parent while the non-custodial parent have regularly scheduled visitation rights. The advantages of this arrangement are that children are permanently residing in a single location. Logistically, this can be less stressful for both the children and the parents, especially when it comes to schools, neighbors, and friendships.3
However, this arrangement is arguably less “equal” than joint physical custody because the children no longer live with the noncustodial parent.3 The noncustodial parent may feel like a “visitor” in the children’s lives over time and visitation may seem like playtime rather than meaningful daily bonds.3
Here are a few questions to ask yourself regarding sole physical custody:
Who will your children permanently stay with?
Will it be difficult for your children to cope with sole physical custody?
How important is geographical stability to your children?
How involved do you want your ex-spouse to be in your children’s child-rearing?
Visitation Rights of the Non-Custodial Parent
In sole physical custody arrangements, both the custodial and the non-custodial parent must follow the arranged visitation schedule.4 The non-custodial parent can’t take their children away from the custodial parent without consent, or otherwise may face severe legal consequences.4 Similarly, the custodial parent can’t refuse a scheduled visit from the non-custodial parent under normal circumstances, including if the child is sick, if the custodial parent does not like the non-custodial parent’s new partner, and much more.7 However, there are circumstances where the custodial parent or the child may be able to legally refuse a visit. These circumstances usually arise if the custodial parent fears imminent harm to the child (such as abuse or neglect); or if the children themselves do not want to visit the non-custodial parent. Violation of visitation rights can have serious consequences. If the violations are continuous, a judge may find the violator to be in contempt of court. In some states, interference with visitation may be a criminal offense. Because visitation rights can be complicated and contentious, if you suspect any violation it’s crucial to speak with an attorney.
Visitation Rights of Grandparents, Step-Parents, and Caretakers
Every state has its own statutes allowing grandparents, step-parents, foster parents, caretakers a legal right to maintain a relationship with children. However, states’ laws vary and some are more restrictive than others. Many states have permissive visitation laws granting grandparents and others visitation rights intended to serve in the child’s best interest. But some states restrict court-ordered visitations only to grandparents, and only under a strict set of conditions. Grandparents, step-parents, caretakers, and others involved with a visitation struggle should understand the issue is state-specific and courts have made contradictory rulings in the past. If you’re facing resistance to visitation you should consult an attorney.
Legal custody is your right to make decisions about your child’s upbringing, such as education, medical care, and religious instruction. Similar to physical custody, legal custody may be jointly shared between both parents or solely vested in one parent. Generally in most states, both parents continue to have joint legal custody after divorce, meaning both parents have equal rights to make child-rearing decisions. However, courts may award sole legal custody to one parent under some rare circumstances. A parent with sole legal custody has the unilateral legal right to make child-rearing decisions.
Non-Parent/Third-Party Custody or Guardianship
In some situations, relatives or close family friends may seek custody. States label this type of custody as “non-parental custody,” “third party custody,” or “guardianship.”11 This process is initiated by filing a petition with the court, paying filing fees, and sometimes filing a letter of consent from the parents. The court does a background check of the petitioner, arranges interviews and sometimes home inspections, and then a judge makes the decision in the best interest of the child.
Reaching a Custody Agreement
Parents can reach a custody agreement informally, via a mediator, or via a judge’s court decision. Regardless of how you plan to reach a custody agreement, you should not negotiate or make any agreements without first seeking legal advice. Though the process may vary, the end result is a written legal agreement. It is often called a “settlement agreement,” “custody agreement,” or “parenting agreement.” The agreement is then shown to the court for final approval, and the finalized agreement becomes a binding contract to which parents and others must adhere to.
Parents can reach a child custody agreement through private negotiations, with or without the help of attorneys. Parents may choose to negotiate amongst themselves and hire attorneys to finalize agreements, or the parties may negotiate their positions through a representative attorney.
Mediations are less adversarial than a court setting and more collaborative than an informal negotiation. It is a structured process whereby a neutral third party helps settle disputes between the divorced couple. In the initial mediation meeting, the mediator explains the overall process. Then, the mediator and the parents determine the custody issues that need to be resolved. An agenda is agreed to and discussion on each issue begins in a give-and-take collaborative manner. Finally, the mediator will prepare a written agreement to be finalized in court.
Circumstances and emotions may make it impossible to settle disputes outside of a courtroom.5 When family courts and judges need to make decisions about child custody and visitation rights, they consider what is in the best interest of the child. All states use a “best interest of the child” standard though its definition is amorphous and dependent upon jurisdiction. Here are some factors a court may use to make its decision:
Parent’s Living Situation: Sometimes the parent awarded the family residence will be awarded custody for stability reasons. Also, proximity to the children’s school and social activities may also matter.
Parent’s Relationship with the Children: Judges may take into account each parent’s willingness to provide for the children before and after separation.
Parent’s Willingness to Support the the Other Spouse’s Relationship with the Children: Courts will look to whether a parent cooperates with one another in childrearing or whether a parent will interfere with each other’s relationship with the children.
Children’s Preferences: Courts may take into account a child’s preferences about custody and visitation, especially if the child is older. Some courts are required to consider the child’s views while others do not.
Age of Children: Though less relevant today, some judges believe younger children (especially nursing infants) should live with their mothers.
Stability: Judges prefer a minimally disruptive custody and visitation arrangements to help children through what can be an emotional period.
Sexual Orientation of Parents: While many state courts that recognize same-sex marriage will not take this into account, some state courts are allowed to consider the sexual orientation of the parents with regards to custody and visitation rights.
Abuse or Neglect: Courts will limit a parent’s contact with the children if there is evidence of abuse or neglect.
Establishing and Calculating Child Support
If one parent is awarded sole physical or legal custody, the noncustodial parent is usually required to make child support payments to the custodial parent. If the parents are awarded joint physical custody, the child support obligations are determined by the percentage of time the child spends with each parent and how much money each parent earns. States have varying guidelines to determine the range of child support to be paid by a parent, depending on respective incomes and expenses. Some states allow judges leeway in making child support determinations while other states follow strict guidelines. Factors in determining the amount of child support usually include:
Child care expenses, including health insurance, education, day care, and special needs.
Income of the custodial parent
A parent’s ability to pay
The children’s standard of living before divorce or separation
Family relationships can and do continue after a divorce. Divorced parents can be effective parents even if they are no longer in a relationship. The manner in which parents resolve conflicts affect the way in which children adjust to divorce.6 When parents compromise and resolve conflicts respectfully, children exhibit less fear, distress, and other negative emotional symptoms.6 While there are many psychological studies and articles aim at helping children of divorce better cope, there are a few core ideas that apply to parents: Be respectful to your spouse during the divorce and custody process: Verbal attacks and violence between parents has been associated with post-traumatic stress disorder (PTSD) in children.6 Relieve your children’s abandonment issues: Children and adolescents are emotionally dependent on parents and divorce can shake their trust in this dependent relationship. Reassure them that you both love them and that they will always have two parents regardless of the divorce.7 Insulate your children from the divorce process: Avoid confiding too many details about the divorce process with your children either as a messenger or as a sounding board. Relieve their sense of guilt by not using them as leverage or bargaining chips in the custody process.
Hiring an Attorney
Divorce is a complex and exhausting matter, but hiring a legal professional to guide you through the lengthy legal process can make an enormous difference. Taking control of the situation is often the first step to emotional recovery and choosing the right attorney can relieve some of your stress. Consider the following steps to before making any final decisions:
Make a list of family law or divorce attorneys in your area: Knowing your options will empower you to take the next steps.
Narrow down the list by researching attorneys online: Make sure the attorney is licensed to practice in your state and make sure they are experienced in the nuances of family law.
Prepare for your initial meetings: Before you decide on your attorney, you will meet him or her in an initial consultation. Prepare a list of questions that you would want to ask and bring the necessary documents.
Make an educated decision: Be transparent about your budget so you won’t run into financial issues later on. Attorney’s fees can be costly, but good attorneys may be able to save you money in the long term.
Work productively with your attorney: Keep your attorney informed of the process and be easy to reach. An attorney is your personal representative and the better you work with them, they better they will be able to represent you.
We hope this guide has provided you with a clearer understanding of the child custody process in a divorce proceeding. If ever you are facing the stress of divorce, understand that you are not alone and your difficulties can be overcome.
No matter the nature of your divorce, it is in your best interest to consult an attorney. A situation with the magnitude of your child’s custody should not be taken lightly, and finding the right attorney is not an expense to cut corners with. Professionals like family law or divorce attorneys may help you take control of your situation and help you start a new life with your children. Don’t be afraid to find one in your area, and take control of your custody battle!
The materials provided in this article are for informational purposes only and not for the purpose of providing legal advice. Use of and access to this article or any of the links contained within the article do not create an attorney-client relationship between the author and the user or browser. You should contact your attorney to obtain advice with respect to any particular issue or problem.
Edward Tsui is a contributing author at Expertise.com. He holds a J.D. from the Boston University School of Law and has successfully passed the California State Bar exam.
Edward's articles are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice regarding any particular issue or problem.