Child Custody and Visitation in a Divorce

Child custody laws & visitation rights

If you are preparing to go through a divorce and you have minor children that are not from other relationships, there are legal aspects that will have to be reviewed and determined related to the care, welfare, best interest, and support of those children.

The two primary child custody laws (when it comes to minor children) include:

1. Child Custody and Visitation
2. Child Support

Child custody and visitation decisions tend to be a very difficult part of the divorce process. This is the time when the court will make a decision with whom the child will reside, how often the parent’s will have to spend time with the child, who will be responsible for decisions about the health and welfare of the child, medical care and treatment, and other areas.

To begin to understand the nature of child custody, it is important to understand the different types of custody (these may vary by state):

1. Legal Custody
2. Physical Custody
3. Sole Custody
4. Joint Custody

When it comes to making the decisions about and for the minor child, the court will assign legal custody to one or both of the parents. These are decisions impacting the child’s environment such as where they will go to school, their religious activities, and medical care. If the court wants both parents to be involved in this decision making process, they will likely order joint legal custody. On the other hand, if the court feels that one parent should be the decision maker, they will likely order sole legal custody to that parent.

Physical custody

When it comes to making decisions about with whom the child will live with, this is known as physical custody. This is distinguishable from legal custody as it focuses on the day to day responsibility of caring for your child. Like legal custody, the court may order joint or sole physical custody. In many states, the laws are intended to ensure that both parents are involved with their children after divorce. Thus, absent certain reasons (e.g., criminal history, violence, drug and alcohol abuse, etc.) that may place the child in danger, courts will often look towards a joint physical custody model.

If sole physical custody is ordered, the parent with physical custody will be referred to as the custodial parent, while the other parent will be the noncustodial parent. In these situations, the noncustodial parent will have child visitation rights. In other words, there will be an agreed to schedule where the noncustodial parent will be able to spend time with their child.

In some visitation schedules, if the noncustodial parent has a history of violence, abuse, or drug and alcohol abuse, they may be required to have someone else present during their visitation time. This is referred to as supervised visitation. The individual overseeing the visitation will generally be appointed by the court or in some situations, be decided by the parents with the courts approval.

Another scenario that may arise related to visitation is grandparent visitation rights. As with general custody and visitation decisions, the court’s first priority is the child’s best interests. Thus, they will rely upon information about the relationship with the child, the grandparents themselves, and even the thoughts and wishes of the parents. Grandparent visitation rights and laws vary from state to state.

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