Nolo's Fast Facts: Child Custody and Visitation
by the Editors of Nolo Press
Copyright © 1995 Nolo Press
You may copy this article so long as you include this copyright notice.
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. Physica lcustody 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
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 degreepossible, a judge will
try to maintain a child's school, community and religiousties.
- 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 thechild 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
- the parent's ability to provide the child with food, shelter, clothing and medical care
- the child's established living pattern (school, home, community, religious institution)
- the quality of school-particularly important when one parent wishes to move
- the child's preference, if the child is above a certain age (usually about12), and
- the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
4. Are there special issues if a gay or lesbian parent is seeking custody or visitation
- 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 aparent 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 todeny 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
non custodial 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 ofcustody 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 ofwhat'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, agreater 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 non custodial 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 then on custodial parent's duty to pay child support
may be considered temporarily suspended.
- One important study discovered a telling relationship between custody and visitation
arrangements, levels of conflict and payment of court-ordered child support. Fathers tended
to continue paying child support when they had regular and frequent daytime and overnight
visits with their children. The less involved with their children's lives they became, the
less apt they were to keep paying support, and their compliance fell off over time.
9. 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?
- All states and the District of Columbia have enacted a statute called the Uniform Child
Custody Jurisdiction Act, which sets standards for when a court may make a custody
determination and when a court must defer to an existing determination from another state.
Having the same law in all states helps standardize how custody decrees are treated.
It also helps solve many problems created by kidnapping or disagreements over custody
between parents living in different states.
- In general, a state may make a custody decision about a child only if it meets one of
these tests (in order of preference):
- The state is the child's home state. This means the child has resided in the state for
the six previous months, or was residing in the state but is absent because a parent took
the child to another state. (A parent who wrongfully removed or retained a child in order to
create a "home state" will be denied custody.
- The child has significant connections in the state with people such as teachers,
doctors and grandparents, and, in the words of the Act, "substantial evidence in the
state concerning the child's care, protection, training and personal relationships."
(A parent who wrongfully removed or retained a child in order to create "significant
connections" will be denied custody.)
- The child is in the state and either has been abandoned or is in danger of being
abused or neglected if sent back to the other state.
- No other state can meet one of the above three tests, or a state that can meet at
least one test has declined to make a custody decision.
- If a state cannot meet one of these tests, the courts of that state cannot make a
custody award, even if the child is present in the state! In the event more than one
state meets the above standards, the law specifies that only one state may make custody
decisions. This means that once a state makes a custody award, any other state must keep
its hands off the matter.
10. 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?
- In most states, it's a crime to take a child from his or her parent with the intent to
interfere with that parent's physical custody of the child (even if the taker also has
custody rights). This crime commonly is referred to as "custodial interference." In most
states, the parent deprived of custody may sue the taker for damages, as well as getting
help from the police to have the child returned.
- If a parent without physical custody (who may or may not have visitation rights) removes
a child from--or refuses to return a child to--the parent with physical custody, it is
considered kidnapping or child concealment in addition to being custodial interference.
Federal and state laws have been passed to prosecute and punish parents guilty of this
type of kidnapping, which is a felony in over 40 states.In many states, interfering with a
parent's custody is a felony if the child is taken out-of-state. Many states, however,
recognize good-cause defenses, such as where the taker acted to prevent imminent bodily
harm to self or to the child. In addition, some states let a parent take a child out-of-state
if the parent is requesting custody in court and has notified the court or police of the
11. 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?
- Mediation is a non-adversarial process where a neutral person (a mediator) meetswith
disputing persons to help them settle the dispute. The mediator does not,however, have
power to impose a solution on the parties.
- Mediation is often used to help a divorcing or divorced couple work out their differences,
especially over custody and visitation disputes. Some lawyers and mental health professionals
employ mediation as part of their practice. Several states require mediation in custody and
visitation disputes and a number of others allow courts to order mediation. In California
and a few other states, if the parties do not reach agreement, the mediator is usually asked
by the court to make a recommendation. In most states, however, the mediator plays no further
role if the parties can't agree. Mediators are very skilled at getting parents who are bitter
enemies to cooperate for the sake of their children. The more parents can agree on the details
of separate parenting, the better it will be for them and their children. And mediators are
skilled at getting the parents to recognize this fact and then move forward towards
negotiating a sensible parenting agreement. If there is a history of abuse or the parents
initially cannot stand to be in the same room with each other, the mediator can meet with
each parent separately and ferry messages back and forth until agreement on at least some
issues is reached. At this point, the parties may be willing to meet face to face.
12. Under what circumstances can custody orders be changed within the state where
they were obtained?
- After a final decree of divorce is filed with a court, former spouses may agree to modify
the custody or visitation terms. This modified agreement (also called a"stipulated modification")
may be made without court approval. If one person, however, later reneges on the agreement,
the other person may not be able to enforce it unless the court has approved the modification.
Thus, it is generally advisable to obtain court approval before relying on such agreements.
Courtsusually approve modification agreements unless it appears that they are not in the best
interests of the child. If a parent wants to change an existing court order affecting custody
or visitation and the other parent won't agree to the change, he or she must file a motion
requesting a modification of the order from the court that issued it,usually on the ground
of changed circumstances. Requiring a showing of changed circumstances encourages stability
of arrangements and helps prevent the court from becoming overburdened with frequent and
repetitive modification requests.Some examples of changed circumstances:
- Geographic move. If a custodial parent geographically relocates a substantial distance,
the move may constitute a changed circumstance that justifies the court's modification of a
custody or visitation order to accommodate the needs of the non custodial parent. Some courts
switch custody from one parent to the other, although the more common approach is to ask the
parents to work out a plan under which both parents may continue to have significant contacts
with their children.
- Change in lifestyle. Changes in custody or visitation orders may be obtained if
substantial changes in a parent's lifestyle threatens or harms the child. If,for example,
a custodial parent begins working at night and leaving a nine year old child alone, the
other parent may request a change in custody. Similarly, if a non custodial parent begins
drinking heavily or taking drugs, the custodial parent may file a request for modification
of the visitation order (asking, for example, that visits occur when the parent is sober,
or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental
to warrant a change in custody or visitation rights varies tremendously depending on the
state and the particular judge deciding the case. For instance, cohabitation by a parent
may be ignored in one place, but not another.
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