How to Determine Child Custody and Visitation Rights During a Divorce

One of the hardest aspects of divorce is the impact it has on children. In a best-case scenario, the parents come to an amicable solution about who will retain custody and how often the other parent will be able to spend time with the children.

Sadly, many parents end up fighting about where the child will live and the courts have to decide who will get custody.

Many parents leave court dissatisfied with who the judge awards custody to but the judge makes his decision based on the best interests of the child.

There are certain criteria which the courts consider when they’re looking to determine who will be the best custodial parent. We’ll go into detail about them but first, let’s look at the two types of custody: legal and physical.

Legal custody

The parent who has legal custody has the court’s authority to make key decisions regarding the child’s life.

They can make decisions on things like education, religion and non-emergency medical care. Most often, the courts award joint legal custody to both parents. These means the divorcing spouses will communicate on things like where the children go to school and whether they are exposed to a particular religion.

Joint legal custody is not guaranteed. If one parent is unfit, the judge can award sole custody to the other parent. If you are seeking sole custody of your child, you need to have a divorce attorney on your side who will fight for you and your offspring.

Physical custody

It should be noted that joint legal custody does not mean that both parents share equal time with the child or children.  The judge determines physical custody separately. This is also known as parenting time.

Despite the problems parents may have with each other, children generally benefit from having both parents in their lives.

Sometimes the parents get equal custody. Other times, the court orders that the child lives with one parent and awards the other parent “reasonable” visitation rights. On occasion, the divorcing couple agrees on what is reasonable and they move forward.

If they can’t agree, the courts must also decide on this. If one parent is abusive or otherwise unstable, the courts can order that all visits be supervised. Sometimes the courts let the parents decide who will supervise the visits.  

Alternatively, the judge issues an order. Parents who are allowed supervised visits can petition for unsupervised visits after some time passes.

How child custody and visitation rights are decided

It is worth reiterating that it is in the best interests of the family to reach an agreement privately.

Going through the court process can be distressing to all concerned. Parents should know their children’s needs better than a judge who is a complete stranger.

However, many divorcing couples find it difficult to agree on anything, even the wellbeing of the child they created together. If the adults can’t work out an arrangement for child custody and parenting time, the courts have to decide.

It should be noted that under the Uniform Child Custody Act, grandparents can also be granted visitation rights.

Whether the parents are making the decision or the courts, similar criteria should be used.

The child’s preferences

Children often have opinions about who they want to live with. Their views should be taken into consideration, especially if they are older. Moving to a new neighbourhood may mean having to switch schools and children may not like this.

The child’s relationship with each parent

If the child always had a difficult time interacting with a particular parent, they may not do well living with them under even more trying circumstances.

The home environment each parent will provide

One parent will likely leave the marital home. Their new home will have to be assessed. If they are moving to an unsafe neighbourhood or an apartment that isn’t suitable for young children, they shouldn’t be awarded custody.

The health of each parent

A parent who is physically or mentally unwell will not be able to properly care for a child.

Each parent’s involvement in caring for the child

If one parent performed all or most of the childcare duties, it makes sense that they would be awarded physical custody.

A parent who was hardly involved would struggle if they suddenly had to take care of the child most of the time.

Any criminal activity or misconduct by either parent

If one parent has been convicted of a crime, is prone to intoxication or drug abuse or otherwise misbehaves, it is unlikely they will get physical custody.

Each divorce and child custody case has its own peculiarities.  The most common factors the courts look at are outlined above but other issues may arise.

A lot is at stake when it comes to child custody and visitation rights during a divorce. Emotions run high and the adults often aren’t thinking clearly. Children may be scared and confused. The advice of a family law attorney can go a long way in securing the best outcome for the children.