Legal Columns


Custody Dispute: Things to Consider 05/24/2018

The number one priority for most divorce clients is child custody. A consistent legal standard for granting custody is what is in children’s best interest. Therefore, if the couple can put aside their differences with each other, and reach an agreement by discussing what would be the best interest for our children, that would be ideal. However, if the two spouses fail to reach an agreement, the judge in the family court will decide custody for the couple. In this column, we will discuss the process and the rationale of the court's decisions on custody.

 In deciding on custody, the court will consider the various factors related to the child's mental and physical health and determine what is in the best interest for the child. Based on each state law, factors that courts will consider to determine best interest of the child may vary. Generally, the gender and age of the child, the mental and physical health of each parent, relationship between each parent and the child, finances of each parent, child’s current circumstances, the impact of changed circumstances would have on the child, and child’s choice are considered by courts. A court could give shared or joint custody to parents, or sole custody can be granted to one parent. Awarding sole custody to one parent can be rare, but it is possible. For example, if the court accepts evidence that the father is a danger to the child due to prior history of physical abuse, alcoholism, and drug abuse, it increases the likelihood that the mother getting sole custody.

 But in recent years, the belief that both parents’ participation in the upbringing of their children has become increasingly prominent. As a result, the majority of judges tend to favor some form of joint or shared custody. There are two types of custody : physical custody (the right to actually live with them) and legal custody (the right to make important decisions about the children’s life). In recent years, even if courts give one parent physical custody, legal custody is often shared between two parents. Furthermore, if one parent is granted physical custody, the other parent is likely to be given reasonable visitation rights.

 Reasonable visitation right is a vague concept, in which the two spouses will agree and decide exactly when and where the parents with whom they will spend time with their children. In reality, the couple may have more deference to a parent who has primary physical custody in scheduling visits since that parent has children most of the time. If the two spouses come up with a reasonable schedule, they can submit it to the court to have a binding court order. On the other hand, if the relationship between the two spouses is so adversarial that they are unable to agree on a plan, the court will decide on the schedule.

 In conclusion, if you have minor children, it is best for you to discuss custody and visitation arrangements with your spouse before the filing for divorce. Unless the other spouse will cause direct harm to the child, court order sole custody to one parent is not very likely. Furthermore, even in the sole custody situation, the other parent will have some reasonable visitation schedule. If the two parents cannot reach an agreement, the court will make a decision for them, which always carries the risk of getting a judgment unfavorable to you. However, in some special situations where your spouse may have used violence against your child, you should consult a family lawyer to find ways to minimize contact between your spouse and child.

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