Child Custody and Visitation

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
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    Children Under Age 14 Need Two Parents’ Consent for U.S. Passport

    In July 2001, the United States Department of State began to implement a new law regarding passport application procedures. Under the Two-Parent Consent Law, both parents are required to execute the passport application for a minor U.S. citizen under the age of 14. By putting this new law into practice, the Department of State seeks to decrease the likelihood that a U.S. passport will be used to facilitate an international parental child abduction.

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    Tax Issues Related to Qualified Domestic Relations Orders and Divorce

    An increasingly large portion of the assets of married couples consist of rights to payments and stock from pension plans. In many states such assets are subject to division during a divorce. Divorce and division of property are generally controlled by state law, but pension plans are controlled by federal law in many respects.

    Pension Plans and ERISA
    A major advantage of saving for retirement through a pension plan is that contributions from employees and employers for plans such as a 401(k) plan are not taxed as income until distributed by the plan, usually after retirement, at lower tax rates. However, under provisions of the Federal Internal Revenue Code, the assignment of pension benefits, including transfers to a spouse during divorce, may result in the loss of such tax benefits.

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    Virtual Visitation: Webcams and Weekly Visits

    Proponents of the Web cam option seek to get it included in custody agreements and in state custody laws.

    But not everyone is ready for it.

    Instead of counting the months until she would see her son each summer, Carrie Hammond needed only count the hours until Kegan’s face would light up her computer screen. Though Kegan, 6, was in Tennessee with his father, and Hammond, 27, lived in San Marcos, the two were participating in virtual visitation as part of the family’s child-custody agreement by making video calls via Web cameras. "It’s been instrumental in keeping the relationship strong," Hammond said, recalling their hours-long, twice-weekly Web cam sessions.

    Recently, Kegan chose to move in with Hammond, a decision she attributes to the emotional closeness the Web cams afforded them for four years.

    Virtual visitation is becoming a popular way to incorporate the potential of modern technology into the lives of parents and children separated by divorce and distance. Utah, Wisconsin and most recently, Missouri, have made virtual visitation state law, and several other state legislatures, including those in California and Ohio, are considering making it a formal supplement to physical custody arrangements.

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