Custody / Visitation

When parents cannot agree on the custody of their children, the Courts may intervene and make a decision based on the best interests of the child. There are two types of custody: (1) Legal Custody and (2) Physical Custody. Joint legal custody is where both parents share the right and responsibility to make decisions regarding the child’s health, education, and welfare. With sole legal custody, one parent has primary control over decisions regarding the child’s residence, health/medical treatment, education, and welfare.

Physical custody refers to the amount of time that the children spend with each parent (where the child most often resides). The custodial parent is usually granted a majority of the child’s time. The other (noncustodial) parent receives either secondary physical custody or visitation rights. There can be joint physical custody and primary physical custody. Joint physical custody generally means that each parent has significant periods of physical custody. Physical custody is shared in such a way as to assure the child frequent and continuing contact with both parents. Primary physical custody generally means that the children will spend most of their time under the care of one parent, and a visitation schedule with the other parent.

In determining child custody the Courts and the parties consider the suitability or fitness of each parent to have custody of the child or children, the mental and physical well‐being of the child and each parent, the relationship of the parent or parents with the child and its nature, duration and extent, any prior good or bad acts or habits of the parties, child’s age and gender, any history of abuse, the existence or nonexistence of any other familial or other relationships affecting the child. Also considered is the ability of each parent to provide a healthy and stable environment and educational opportunities.

In making a custody order between parents, the Court will usually grant the other/noncustodial parent reasonable visitation rights. Visitation is the time one parent has to be with the child in a parenting arrangement where the other parent has primary physical custody. An order completely restricting a parent’s visitation rights will be upon a finding that any form of visitation with the parent would be detrimental to the child’s best interest. If the custody order does not provide for parent visitation rights but does not expressly withhold such rights, the noncustodial parent has an implicit right to reasonable visitation. Child visitation can take a variety of forms or schedules.