During a divorce or separation proceeding, couples with children will have several important decisions to make, such as who will gain custody of the children, what type of custody rights each parent will retain, and depending on the situation, the arrangements regarding visitation of the children.
Generally speaking, child custody refers to the legal rights and responsibilities that a parent has over the care, control, and upbringing of a child. There are several different ways to split custody rights, which will be discussed in further detail below.
Child visitation, on the other hand, refers to the legal rights afforded to a non-custodial parent. In other words, if a parent does not obtain any type of physical custody over a child, then they will usually be granted visitation rights. There are a couple of forms of visitation rights as well, which will also be discussed in more detail below.
Regardless of whether you are seeking custodial or visitation rights over a child, there are two main ways that a party to a divorce or separation proceeding can begin the process:
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By Agreement: The first and more preferred method is by agreement. If both parties are willing to cooperate, the parents should discuss child custody and visitation arrangements without the involvement of lawyers or the court. This way they can come to an agreement on their own terms. If this is possible, then the parents should draft an agreement in writing that states the conditions of custody and a basic visitation schedule.
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By Court Order: In cases where the parents cannot come to an agreement on their own, or if the well-being of the child is in jeopardy because of one or both of the parties' behavior, then a court will have to intervene and make decisions about the arrangements. When the court is tasked with such a decision it typically means that the parents will be given an opportunity to present their side of the situation at a hearing.
One final thing to note about the above options is that whichever method is selected will require a court's approval of the final child custody agreement and/or visitation schedule. The only difference is that the parties will have more control over schedules and arrangements if they can come to an agreement on their own.
Child's Best Interests Standard
In the majority of family law cases where a child is at issue, the court will make decisions concerning the child based on the child's best interest standard. This is the standard used when finalizing child custody and/or visitation agreements, and it will take precedence over most state child custody laws. However, the factors that the court considers when applying the standard will vary by state.
Basically, the purpose of the child's best interest standard is a way for the law to ensure that a vulnerable class of persons (i.e., children) are granted the utmost protections. Thus, according to this standard, an individual taking custody of a child must be able to provide a stable home environment and must be able to ensure the safety and well-being of the child.
In order to determine whether a parent qualifies for custody under this standard, the court will consider a variety of factors, such as the parent's ability to care for the child, the relationship that the parent has with the child, and which home would be better suited for the child's adjustment or needs.
Different Types of Custody Arrangements
As previously mentioned, there are several different types of custody arrangements. These include legal, physical, sole, joint, and bird's nest custody. All forms of custody refer to the rights that a parent has over a child.
Types of Custody Arrangements: Legal Custody
Legal custody refers to the right to make important decisions about how a child will be raised, such as what school they will attend, what religion they will follow, and the kind of medical care they will receive. A parent may either be granted joint or sole legal custody over their child, though joint is preferred if the parents are willing to cooperate.
In cases where joint custody is awarded or in the event of an emergency, the parent who currently has primary physical control of their child's location will temporarily retain greater legal custody rights until the other parent can be reached, or if the issue is a minor one (e.g., punishing the child for not doing their homework).
Types of Custody Arrangements: Physical Custody
Physical custody involves the right to have a child physically live with a parent. This is usually the place that will be considered the child's home since it is where they will spend most of their time.
However, physical custody can be awarded to both parents. In these cases, the child will either equally split their living arrangements between both parents' homes, or the parents will design a schedule that will allot alternating periods of time in which the child will live with them (e.g., spending summers at one parent's house and living with the other parent during the school year).
Types of Custody Arrangements: Sole Custody
Sole custody refers to when only one parent is granted both legal and physical custody of the child. This means that the parent will be able to make legal decisions on behalf of the child and also that the child will physically reside with them.
Sole custody is usually awarded in cases where the non-custodial parent poses a serious threat to the child's well-being (e.g., is violent or abusive towards the child) or is no longer around (e.g., incapacitated, deceased, etc.).
One important thing to note about sole custody is that the non-custodial parent will not be granted any visitation rights.
Types of Custody Arrangements: Joint Custody
Joint custody allows both parents to equally share responsibility over certain aspects of their child's life, including the amount of time a child spends with each of them and the ability to make important decisions about how the child is raised.
Parents can obtain joint legal custody, joint physical custody, or both. This means that they will either share rights to make decisions about the child's upbringing (i.e., joint legal custody), split the time amount of time that they spend or live with their child (i.e., joint physical custody), or enjoy the rights afforded by both (i.e., joint legal and physical custody).
Types of Custody Arrangements: Bird's Nest Custody
In rare cases, parents may opt for “bird's nest custody.” This type of custody is when a child will dwell in the same residence, but the parents will take turns living in and overseeing the home.
Although this arrangement can make it easier for a child to adjust since they will not have to continuously split the time between two homes, it can also make it much harder if the parents disagree on certain household issues or fail to leave when it is the other parents turn to live with the child.
Visitation Rights
Depending on the facts of a case, a parent may also receive visitation rights as either an alternative to child custody or in addition to custodial rights. As with custody arrangements, the terms of visitation will be provided in a formal agreement known as a “visitation schedule.” Along with a detailed schedule, an agreement will also usually contain the child's primary residence, permitted activities, and instructions regarding modification of the arrangement.
In general, there are two types of visitation: unsupervised and supervised. Unsupervised visitation is the most common of the two. It permits a parent to spend time with their child without the supervision of a neutral third party.
In contrast, supervised visitation is less common and requires a neutral third party to be present during the visitation period. This form of visitation is court-ordered. As such, the court will typically create the parties' visitation schedule (e.g., date, time, duration, etc.), and will appoint the person supervising the visit.
Again, similar to child custody arrangements, the court will decide whether visitation will be supervised or unsupervised based on the child's best interest standard. Recall that this standard is only focused on what arrangement would afford the best protection over the child's safety and well-being, not the parents. Thus, the standard has a major influence on which type of visitation the court orders.
For example, if a parent has a history of domestic abuse, substance abuse, or neglect, then the court will most likely order supervised visitation.
Modifying Child Custody or Visitation Arrangements
Even if a final court order regarding child custody or visitation arrangements already exists, it is still possible to gain custody of a child by submitting a request for modification. New or modified custody orders are typically issued in cases where one or both of the parties experience a “major life change.” These are changes that would likely have a serious impact on the child and how they are being raised.
Some major life changes that may qualify to modify an existing order include:
- When a parent's behavior puts the child's life at risk (e.g., abusing or selling drugs);
- If one of the parents becomes incapacitated, deceased, or some other reason that results in them no longer being able to care for the child;
- The parent remarries, relocates, or loses their job; and/or
- They complete court-ordered programs that reinstate certain parental rights.
If a situation arises in which a parent seeks to modify an existing child custody or visitation order, then they must file a request for modification with their local family court. A judge will then review their request, determine whether to make any changes, and if so, issue a new or modified order based on those adjustments.
What Can You Do If Your Child Custody and Visitation Order was Violated?
In the best case scenarios, child custody and visitation agreements are determined and agreed to by the parents and then approved by the court, which makes it a legally enforceable agreement. Since the court-approved agreement is legally enforceable, a violation of child custody and visitation order is treated very seriously and may lead to legal consequences.
Some examples of violations of these types of orders may include:
- A parent who keeps the child with them for a longer period of time than what is provided for in the custody or visitation order;
- Failure to inform the other parent of the whereabouts of the child;
- Taking the child on a long trip without getting approval beforehand;
- Taking the child outside of state lines, which can also lead to federal issues;
- Allowing an unauthorized individual to care for the child;
- Denying the other parent their court-ordered custody or visitation rights;
- Various other violations.
If these situations do arise, it is important for individuals not to attempt to take matters into their own hands. If a violation occurs, an individual should first contact the relevant authorities, which may include law enforcement, especially if that child has been gone for a period of time or is missing.
In addition, it is advisable for the individual to inform the court regarding the violation as soon as possible once a violation has been recognized. That way, the individual can also avoid potentially engaging in actions which may also be a violation.
What Happens if You do not Follow a Court Order for Child Custody or Visitation?
A violation of a court order for child custody or visitation may lead to serious consequences. Because the arrangement is a court order, the violation of a child custody or visitation agreement may lead to contempt of court issues. This may result in consequences which may include possible criminal penalties such as jail time or criminal fines.
In addition, and of utmost concern, is that a violation of a custody or visitation order may lead to a loss of parental rights. If the individual is the custodial parent, they may lose their custody rights to their child, or have their custody rights reduced.
If the individual is the noncustodial parent, they may lose some or all of their visitation rights as well as their current custody rights. Therefore, seeking to gain additional custody or visitation rights or time outside of the approval of the court may create a situation where an individual loses custody or visitation rights instead.
Avoiding a Child Custody or Visitation Dispute
Although a child custody or visitation dispute or violation may be serious, there may be steps an individual can take to avoid them. The first step is to ensure that the child custody and visitation agreement is formalized and approved by the court, making it legally enforceable. In some cases, simply having a legally enforceable order prevents violations and disputes.
In addition, if there is a dispute or a disagreement regarding the terms of custody and visitation, an individual should seek a modification of the child custody or visitation order. This may prevent a situation in which one or both of the parents attempt to take matters into their own hands and attempt to create a new arrangement. Any desired changes should be approved by the court prior to being implemented.
Failure to have a custody or visitation order modified may also have negative effects on the child involved. It may cause the child to be placed in situations which are confusing or even dangerous. In contrast, if the desired changes are made through the family court system, the court can make a proper determination regarding the changes using the child's best interests standard.
Can a Family Law Attorney Help Me with My Child Custody or Visitation Dispute?
It is essential to have the assistance of a child custody lawyer with any custody or visitation dispute issues you may be facing. child custody and visitation issues may have legal effects and consequences on either or both parents. More importantly, they may place the child in situations which are not ideal.
Your attorney can assist you with your child custody and visitation dispute issues and help you create a new agreement with your child's other parent. They can also advise you of the laws in your state as well as the possible consequences of different decisions you may be considering. Having an attorney's assistance will ensure the interests of the most important party, your child, are first and foremost.
