Child Custody and Visitation

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.

What factors do courts take into account when deciding who gets custody of the children?

A court gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends upon many factors, including:

  • the child's age, gender, mental and physical health
  • the mental and physical health of the parents
  • the 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
  • 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 the schools attended by the children
  • the child's preference, if the child is above a certain age (usually about 12), and
  • the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.

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.

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. No state requires that a child be awarded to the mother without regard to the fitness of both parents. 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.


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