Q: What is the main difference between "legal" and "physical" custody of a child?
A: A parent who has "physical custody" of a child has the right to provide day-to-day care for the child. The key aspect of physical custody in most child custody situations is that the child will live with the parent who has physical custody. "Legal custody" gives a parent the right to make long-term decisions about the raising of a child, and key aspects of the child’s welfare — including the child’s education, medical care, dental care, and religious instruction.
Q: I’m a single mother. The father of my daughter and I were never married and we do not live together. I want to make sure that my child stays with me, even if her father decides that he wants her to live with him. Does her father have legal rights to custody?
A: When a child’s parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents. However, the father will likely be entitled to visitation rights with the child.
Q: My wife and I recently filed for divorce. It was a mutual decision, and we would like to figure out a custody and visitation arrangement without having the court ultimately decide. Is that possible?
A: Yes. Parents can resolve a custody and visitation matter outside of court — either themselves during informal settlement negotiations (usually with the help of attorneys), or through out-of-court alternative dispute resolution proceedings like mediation or "collaborative law" (also with the help of attorneys).Usually, the court will need to approve the agreement before it becomes final, but that step is typically a formality.
Q: If my divorce goes to family court, how will the judge decide who gets custody?
A: In deciding who will have custody, the court will consider various factors. The overriding consideration is always the child’s best interests. Often, the main factor is which parent has been the child’s "primary caretaker." If the children are old enough, the courts will take their preference into account in making a custody decision.
Q: Can anyone other than a parent get custody of a child?
A: In some cases, people other than a child’s parents may wish to obtain custody — including relatives like grandparents, aunts, uncles, close family friends, or other people who wish to get custody of a child. Some states label such a situation as "non-parental" or "third-party" custody. Other states refer to the third-party’s goal in these situations as seeking "guardianship" of the child, rather than custody.
Q: Do grandparents have a legal right to visitation with their grandchildren?
A: Grandparents may also wish to enforce their legal right to visitation with their grandchildren, if that right is being interfered with by the child’s parent(s), i.e. after a divorce or separation. All 50 states and the District of Columbia have some variation of a law protecting grandparents’ right to visitation with their grandchildren.