Making custody decisions is always the most painful part of divorcing. Being clear about your options from the start may make tough decisions easier.

Types of Custody

  • Legal Versus Physical Custody

    Legal custody is the right to make decisions about your child, including:

    • Education
    • Religion
    • Medical issues
    • Discipline

    Physical custody is having the child physically present with you.

  • Sole Versus Joint Custody

    With sole custody, you alone have legal and physical custody of your child.

    In a joint custody arrangement, you and your ex-spouse share legal and/or physical custody of the child. This might mean:

    • Having the child spend a significant amount of time with each parent
    • Spending weekdays with one parent and weekends with the other parent
    • The child spending most of his or her time with one parent and visiting with the other parent on a regular schedule
    • The parents moving in and out of a home where the children live (called "nesting")

    Parenting Agreements

    Most states require divorcing parents to have a written plan outlining:

    • Where the child will live
    • Details of when the child will be with the noncustodial parent
    • Who will make parenting decisions and how
    • Where the child will be during holidays and school vacations
    • How vacation time with each parent will be determined
  • Factors In Determining Custody

    If you and your spouse cannot agree on a custody arrangement, the court will likely make a decision based on the "best interests" of your child.

    Factors the court will consider in deciding what’s in your child best interest include:

    • Who is currently and has been the primary care provider for the child
    • The mental and physical health of both parents
    • Special needs such as medical care and psychological counseling your child may have
    • The work schedules and availability of each parent
    • Where any siblings will live
    • The support systems (family and friends) of each parent
    • The preference of an older child, such as a teenager
    • The cooperation level between parents
    • Any history of domestic violence between the parents

    What To Expect In Custody Litigation

    Laws and procedures vary by state, but you should expect the following in a custody lawsuit:

    • One of the parents files for a divorce and asks the court to decide custody
    • Both parents file paperwork detailing each parent’s plan for where the child would live, visitation schedules, and how decisions concerning the child would be made
    • The court will likely appoint an investigator, sometimes called a "custody evaluator" or "guardian ad litem," to interview the child, parents and potential witnesses such as family, friends and teachers, and make recommendations to the court regarding custody
    • The parents may be required to go to mediation, where a neutral third party will help the parents work out an agreement without going to court
    • The parents may be required to complete a short parenting course regarding parenting after a divorce
    • Attorneys for both parents may take "depositions" – formal questioning of witnesses under oath- to prepare for trial
    • Both parents will likely have to answer formal written questions under oath, called "interrogatories"
    • There will be a series of motions and hearings before the actual trial, to determine temporary custody and child support
    • At trial, the judge will hear from both parents and witnesses
    • The judge may make his or her decision at the conclusion of the trial, or may wait and send a written decision days or weeks after the trial has ended

    Fighting over your child is expensive, time-consuming and emotionally damaging to everyone involved, especially your child. But knowing your rights as you begin the process make help you make better decisions.

    It is essential to hire a competent local lawyer who specializes in custody litigation to help you in this process.