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 custody is the right to make decisions about your child, including:
- Medical issues
Physical custody is having the child physically present with you.
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")
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.