Facts About Child Custody and Visitation
When parents separate or divorce, the term "custody" often serves as shorthand for "who gets the children" under the divorce decree or judgment.11 min read
When parents separate or divorce, the term "custody" often serves as shorthand for "who gets the children" under the divorce decree or judgment. In 20 states, custody is split into two types: physical custody and legal custody. Physical custody refers to the responsibility of taking care of the children, while legal custody involves making decisions that affect their interests (such as medical, educational and religious decisions). In states that don't distinguish between physical and legal custody, the term "custody" implies both types of responsibilities.
- Does custody always go to just one parent?
- Can someone other than the parents have physical or legal custody?
- What factors do courts take into account when making custody and visitation decisions?
- Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?
- Is race ever an issue in custody or visitation decisions?
- Are mothers more likely to be awarded custody over fathers?
- When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?
- Do I have to pay child support if my ex keeps me away from my kids?
- I have sole custody of my children. My ex, who lives in another state, has threatened to go to court in his state and get the custody order changed. Can he do that?
- I have sole physical custody of our children. Several times my ex has not returned the kids on time after taking them for a visit, and I'm scared one day he won't return them at all. What are my rights as the custodial parent?
- I've heard that mediation is the best approach to solving child custody matters. Things are so bitter between my ex and me that it's hard to see us sitting down together to work things out. How can mediation possibly work?
- Under what circumstances can custody orders be changed within the state where they were obtained?
- About nolo press' products on child custody.
1. Does custody always go to just one parent?
No. Courts frequently award at least some aspects of custody to both parents, called "joint custody." Joint custody usually takes at least one of these forms:
- Joint physical custody (children spend a relatively equal amount of time with each parent)
- Joint legal custody (medical, educational, religious and other decisions about the children are shared), or
- Both joint legal and joint physical custody.
In every state, courts are willing to order joint legal custody, but about half the states are reluctant to order joint physical custody unless both parents agree to it and they appear to be sufficiently able to communicate and cooperate with each other. In Idaho, New Mexico and New Hampshire, courts are required to award joint custody except where the children's best interests - or a parent's health or safety - would be compromised. These 20 states expressly allow their courts to order joint custody even if one parent objects to such an arrangement: AK, AZ, CA, CO, FL, IL, IN, IA, MA, MI, MN, MS, MO, MT, NE, NH, NJ, OH, OK and WI (SD and UT also possibly fit within this group).
2. Can someone other than the parents have physical or legal custody?
Sometimes neither parent can suitably assume custody of the children, perhaps because of a substance abuse or mental health problem. In these situations, others may assume temporary custody of the children under a court-ordered guardianship or foster care arrangement.
3. What factors do courts take into account when making custody and visitation decisions?
The court will normally favor the parent who will best maintain stability in the child's surroundings. There is no set standard as to what constitutes "stability," but a judge looks for continuity in a child's life. To the degree possible, a judge will try to maintain a child's school, community and religious ties.
A court gives the "best interests" of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including:
- The child's age, gender, mental and physical health
- Mental and physical health of parents
- Lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
- The love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance
4. Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?
In a few states, including Alaska, California, District of Columbia, New Mexico and Pennsylvania, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child. As a practical matter, however, lesbian and gay parents - even in those states - may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.
5. Is race ever an issue in custody or visitation decisions?
The U.S. Supreme Court has ruled it unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In the case, a white couple had divorced, and the mother had been awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstance that the boy was now living with an African-American man in an African-American neighborhood. A Florida court granted the modification. The U.S. Supreme Court reversed, ruling that societal stigma, especially a racial one, cannot be the basis for a custody decision. Palmore v. Sidoti, 466 U.S. 429 (1984).
6. Are mothers more likely to be awarded custody over fathers?
In the past, most states provided that custody of children of "tender years" (about five and under), had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. Only South Carolina and Tennessee continue to carry the tender years doctrine in their statutes. Most states require their courts to determine custody on the basis of what's in the children's best interests without regard to the sex of the parent.
As it turns out, most divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that the mother has more time, a greater inclination or a better understanding of the children's daily needs.
7. When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?
The parent with physical custody is generally in the driver's seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a maximum amount of time with each parent. Unfortunately, it all too often translates into very little visitation time with the noncustodial parent, and lots of bitter disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement), which sets the visitation schedule and outlines who has responsibility for decisions affecting the children.
8. Do I have to pay child support if my ex keeps me away from my kids?
Yes. Custody and visitation should not be confused with child support. Every parent has an obligation to support his or her children. When one parent has visitation rights (but not physical custody), he or she is usually ordered to pay some child support to the other parent. The parent with physical custody is deemed to meet the support obligation through the custody itself.
With one narrow exception, no state allows a parent to withhold visitation because the other parent owes support, or to withhold support because of disputes over visitation. The exception? If the custodial parent disappears for a lengthy period so that no visitation is possible, a few courts have ruled that the noncustodial parent's duty to pay child support may be considered temporarily suspended.