Child Custody and Visitation Rights

To win a child custody case, you must usually demonstrate that you and your environment are most likely to serve the best interests of the child. Determining what constitutes “best interest” is often an elusive question. Certainly, it includes the educational best interest of the child. The court will be interested in knowing which parent, and which household, is most likely to promote the academic objectives and educational success of the child. It also certainly includes the health, safety and welfare of the child.

The court will want assurances that the parent seeking custody can provide a safe, healthy and wholesome environment in which to raise the child. Many other factors may contribute to the “best interest” calculus. This may contribute to the spiritual and religious persuasions of the parents, the urban or suburban settings in which the child is raised, the other residents of the household in which the child will be living, the presence or absence of a parent during the business day and on weekends, economic circumstances and child support obligations, bedroom space and other living arrangements, and any special needs the child may have.

More and more often the courts are favoring the parent who demonstrates the greater ability to communicate with the other parent and other family members. Communication and cooperation, or what some courts and psychologists refer to as co-parenting, are often given great weight in child custody process.

The court will also be interested in knowing about the history of any domestic violence between the parents or between either parent and a child.

The parent who maintains primary custody of the child is generally known as the “custodial parent,” and the other parent is generally known as the “non-custodial parent.” Many courts distinguish between legal custody and residential custody or physical custody. Legal custody refers to the right to custody in general, including the right to participate in significant decision-making relating to the child. Where parties have joint legal custody, they are required to communicate and participate jointly in making decisions about how to raise their children, regardless of where their children spend most of their time.

A parent with sole legal custody would normally make decisions on her own. A parent with joint legal custody would, however, be required to communicate and consult with the other parent on such important issues as medical treatment for the child, private school education, overseas travel, and the like.

Residential custody or physical custody usually refers to where the child sleeps at night most of the time. Thus, for example, if a child lives primarily at his mother’s home, but visits his father on alternating weekends, the mother will be said to have physical custody and she will generally be regarded as the custodial parent, even if the father has liberal visitation rights and even if the parties have joint legal custody.

These terms vary from state to state, and they may not apply universally.

The non-custodial parent is generally entitled to visitation time with the children, sometimes referred to as parenting time, shared custody, partial custody, or joint parental responsibility. No textbook or law book specifies how much time the visiting parent should spend with the children. Usually, the timetable is arranged between the parties or ordered by the court based on what serves the children’s best interest. Unfortunately, many couples have difficulty establishing a custody and visitation plan without conflict.

Domestic relations courts are often backlogged with motions and petitions filed by parents fighting each other over custody and visitation rights. In many cases, the court finds itself referring the parents to mediators, therapists, social workers, and various kinds of court personnel, to assist in effectuating the custody and visitation plan. Sometimes, police become involved in the process. Where one party refuses to cooperate or obey a court order, it is necessary for the court to enter a contempt order and to enforce the custody and visitation timetable.

Some parents are notoriously disobedient in dealing with their children. In some cases, mothers are guilty of alienating the children away from their fathers, by casting their fathers in a negative light and over-scheduling the children so that they are busy with school and recreational activities whenever their father has a scheduled visitation weekend. In extreme cases, mothers may be guilty of “parental alienation syndrome.”

There are other technical devices, schemes and syndromes which may apply to custody interference cases as well. Sometimes, a parent is troubled by the fact that the children’s father or mother is now living with a new girlfriend or boyfriend who poses a danger or a risk to the children. Indeed, new stepparents, half-brothers, and half-sisters may raise a number of concerns as families form and re-form over the passage of time.