Child Custody and Visitation

Best interests of child determine who gets custody.

Child custody can take one of several forms. Sole custody gives one parent physical custody of the child as well as legal custody, the right to decide how the child is to be raised. Sole custody has traditionally been the most common custody arrangement in the United States.

In the past dozen years, however, a number of states have expressed a preference for awarding joint legal custody. In a joint custody arrangement, both parents theoretically share in making decisions about how the child is raised. In most joint custody arrangements, sole physical custody is given to one parent so that the child can enjoy a relatively stable home environment. However, joint physical custody, in which the child lives for alternating periods with each parent, has also been awarded. Many experts feel that this arrangement can be more difficult for the child, and such arrangements are rare.

Joint custody arrangements require the cooperation of both parents in making decisions about issues such as schools, religion and outside activities. If the divorce is bitter and there is a great deal of conflict between the parents, however, a sole custody arrangement is probably preferable. In fact, some states still look with disfavor on joint custody arrangements, or prohibit them entirely, because they feel that parents who cannot live together probably will have a difficult time in agreeing on how to raise their children.

Whatever form custody takes, state laws require that the arrangements be in the best interests of the child. At one time, courts almost universally awarded sole custody to the mother, believing that the child's mother was the best person to raise the child. Today, courts are supposed to consider which parent has been the more active participant in raising the child when deciding on granting custody. Even so, the vast majority of children remain with their mothers after divorce.

A parent who does not receive physical custody is entitled to reasonable periodic visitation with his or her child, which usually takes place in the non-custodial parent's home. However, if there is a reasonable and provable fear that the parent may harm the child, or has been guilty of abuse in the past, the court can either require supervised visitation or deny it entirely.

The vast amount of media attention provided to the issue of child abuse, particularly sexual abuse, has led to a marked increase in the number of charges of abuse hurled by one parent against another during divorce proceedings. Because such accusations must be treated seriously by a court in deciding issues of custody and visitation, even clearly unfounded claims of abuse must be investigated. As a result, divorce and custody proceedings can drag on for months longer than necessary, with the parent accused of child abuse prohibited from visits with the children, or allowed to visit them only under supervision by a person authorized by the court. In a number of cases, allegations of abuse have been used as a tool to injure the reputation of one spouse, or as a way to extort additional support money.

No one would argue that a child abuser should be allowed the same custody or visitation rights as other parents. However, no parent who has not abused his or her child should ever be silent in the face of such accusations. If you have been wrongfully accused of child abuse, there are several organizations which can provide you with support, advice, and in some cases, even legal assistance. One such organization with chapters in many parts of the country is VOCAL (Victims of Child Abuse Laws). Your attorney can help put you in contact with this group or other similar groups in your area.

Although it may seem unfair to require a parent to pay support when the parent who has custody denies visitation, in the eyes of the law the issues of visitation and child support are not connected. As a result, even if visitation is denied by the custodial parent, child support payments must still be made as ordered. Rather than withholding payment of court ordered child support in retaliation for being denied visitation, the non-custodial parent must petition the court to enforce visitation rights.