Deciding how to share the custody of your child/children is one of the most crucial pieces in your divorce process. Having a knowledgeable family attorney like Leslie in your corner is essential in seeking a fair custody arrangement.
Physical Custody vs Legal Custody
The court will either decide or approve the physical and legal custody of your children. Physical custody refers to your child’s living and childcare arrangements, whereas legal custody is the right to make decisions about the child's upbringing, education, healthcare and religion.
There are multiple day-to-day arrangements to be made within physical and legal custody concepts, and arriving at an agreement on those issues requires collaboration, discussion, and negotiation among the divorcing parents, their attorneys and the court.
For example, a parent with sole physical custody would be the parent with whom the child primarily lives with. That parent has exclusive control of the child’s physical custody. In many sole custody situations the other parent will be awarded visitation, and those specific times and arrangements are outlined by the court on a case by case basis.
On the other hand, parents with joint physical custody both live with the child/children for some amount of time. This does not necessarily mean that physical custody is split evenly, and each family’s arrangement is different. In some cases one parent has the children at their home on the weekends, or every other weekend. The overarching consideration is what parenting plan is in the child(ren) best interest.
When parents cannot agree on a parenting plan, the court examines the evidence to determine what is in the best interest of the child. It can be helpful to have a judge determine this as coming to a conclusion for custody can be overwhelming for parents who are often clouded with their own biases towards the other parent.
The court will also look to the child’s best interest when it comes to legal custody. The law favors parents sharing joint legal custody, or the right to make choices on child rearing mutually. In some cases, however, contact or influence from one parent is not ideal for the child, in which case sole legal custody is awarded to one parent.
While some couples immediately reach an agreement on where the children will stay during divorce proceedings and in the long term, others require court intervention for a final decision. That decision can come about through a number of ways.
When papers are initially filed, there may be a temporary hearing to determine custody during the divorce process. If you and your spouse are unable to reach an agreement regarding the parenting plan and the court’s assistance is necessary, you will participate in mandatory mediation with a child custody recommending counsel through Family Court Services. Then mediators are experienced in working with parents to facilitate an agreement or make a recommendation regarding what parenting plan is in the child(ren)s best interest
In any case where child custody is contested, the parties must participate in mediation, a service provided through the court.
If you and your spouse go through mandatory mediation, you may resolve custody and visitation in that setting with a neutral third party. If the process is not successful, the issue will proceed to a hearing before a judge and the judge will make the final decision.
Once custody has been established through agreement or court order, parents may still seek to modify the arrangement. This may come about if there has been a drastic change in circumstance, if the child is endangered in the current arrangement, or if other significant reasons for modification arise. Our team will be able to walk you through whether your specific situation warrants a modification.
Interested in learning more about child custody? We’re here to help you. Contact a team member at Leslie A. Soley, Attorney at Law today by clicking here.