When a couple moves to the point of pursuing a divorce in a marriage where children are present, the most important question quickly becomes evident: Who will get custody of those children? It is often the single most contentious issue in the entire divorce proceeding.Along with all the legal arguments and other issues that are involved in terminating a marriage, those involved in deciding the issues around child custody are often the most difficult. The primary issue to be settled is: which parent should be given primary custody? In the best of cases, the parents seeking the divorce are able to come to a mutual agreement which serves the best interests of the children themselves.In the ideal case, the parents will be able to agree on a shared custody arrangement in which both parents share both legal and physical custody of the children. Unfortunately, this is often not the case – so other custody arrangements must be explored. Let’s take a look at some of the more common custody options.First, some basic definitions. “Legal Custody” refers to the right to make the decisions that affect the children, including the areas of education, medical care, religious upbringing, as well as all legal issues. “Physical Custody” refers the right to determine where the child will live, and to the responsibility of seeing to the children’s daily needs, including all responsibility for their care and well-being.Sole CustodyWhen one parent is awarded sole legal and physical custody, that parent then has total responsibility for the children’s physical needs, and all decisions that have to be made in regard to the matters described above. In other cases, one parent may be awarded sole physical custody, but the legal custody may be shared. This type of situation might occur when the living situation of the non-custodial parent is not conducive to the well-being of the children, but the parent is otherwise capable of making sound judgements regarding their welfare.Joint CustodyIn situations where joint custody is ruled, it means that both parents will share custody in some way. Shared custody requires that the parents work out schedules that make it possible for the children to split their time between the two parent’s locations. Typically, a set schedule is maintained, which will help reduce the stress on the children. This can only work when both parents live in the same vicinity, so that the children can remain in the same schools. When the parents’ locations make this impossible, shared physical custody must be modified to take school schedules into account, with visits to the alternate parent limited to weekends and summers.Joint legal custody is generally a simple matter, as there is little likelihood that legal custody can be parsed into different domains. For example, it is unlikely that a parent would be judged competent to share in legal decisions on the child behalf, but not well suited to making medical decisions for them.Bird-Nest CustodyThis is the least common form of custody arrangement, and for good reason. While it is probably the best possible arrangement for the children, it is also the one which requires the most self-sacrifice and cooperation on the part of the parents. Birds-nest custody refers to an arrangement in which the children continue to live in the original family home, and the parents take turns living there with them. This obviously requires that each of the parents have a second place to live, when they are not staying with the children.In the ideal case, the parents could both share a second domicile, since by definition they need never be there at the same time, unless the children are present as well. This type of arrangement would require that the divorced parents be on sufficiently good terms that they could work together on all issues regarding the upkeep and maintenance of the second home, and not find themselves continually at odds over day-to-day annoyances. Since this is not a likely outcome in most cases of divorce, in order to set up this type of custody arrangement each parent must have a separate second home, with all the attendant expense and inconvenience that entails – which is the reason that this arrangement is rare.Deciding on the best custody arrangement is just one of the many challenges you will face as you go through the child custody process. To insure that you have all the information and resources you will need to protect yourself and your children, you need to have a high-quality Custody Guide that you can keep at your fingertips. With access to all the latest information when you need it, you can be more confident about your approach, and be more certain that you will not be ambushed or caught by surprise.
In child custody cases, the court in most jurisdictions will look at what is in the best interest of the child or children involved. In making its determination, the court considers a wide array of factors. First, we must distinguish between physical custody (where the child physically resides) and legal custody (who makes important decisions concerning the child). Factors are applied differently to each type of custody.Who has been the primary caregiver? Further questions include who takes care of the child, feeds the child, shops for clothes, gets them up for school, bathes them, arranges daycare, and who the child turns to for help.The fitness of each parent. Psychological and physical capacities of the parents.Any agreements between the parties. The court will give a lot of weight to a custody agreement, but will want to make sure that any agreement is in the child’s best interest.Ability to maintain family relationships. Who will not only allow family relationships, but will also promote them? This is extremely important.Preference of the child. It is important to note that, while the preference of a child is important, it is not the determining factor. Additionally, the child must be of an age and maturity level to properly express an opinion. Many courts have a procedure whereby a separate attorney will be appointed to represent the interests of the child.The financial resources of each parent. The idea here is that a party who is better situated financially will have the resources to provide more opportunities for the child. Of course, this is frequently not the case, so this is merely one of many factors.Age, health and gender of child.Distance between residences. If the parties live far apart, it will greatly affect a custody determination. Likewise, if the parents live next door to each other, it will also affect a custody determination.Length of separation. How long has each parent been separated from the child?Prior abandonment. This factor contemplates a situation where a parent has previously abandoned the child.Additionally, in making a determination of legal custody and, more specifically, whether to award joint legal custody (i.e. the parents must make important decisions together), the court will often consider additional factors.Ability of the parents to effectively communicate. This is clearly the most important factor in the determination of legal custody, and is relevant as well to physical custody as well. The cornerstone of joint legal custody is communication.Willingness to share custody. The parents should be willing to have a joint custody arrangement.
Relationship Established Between the Child and Each Parent. When both parents are seen by the child as a source of security and love, there is a favorable climate for joint custody. On the other hand, joint custody may be inappropriate when opposed by the child, or when there are indications that the psychological or emotional needs of the child would suffer under a joint custody arrangement.The above is not meant to be an all-inclusive list of what the court will consider in making a custody determination. Most courts will consider all relevant factors. But this list is a starting point