Child Custody and Visitation
Rights
To win a child custody case, you must
usually demonstrate that you and your
environment are most likely to serve
the best interests of the child. Determining
what constitutes “best interest” is
often an elusive question. Certainly,
it includes the educational best interest
of the child. The court will be interested
in knowing which parent, and which household,
is most likely to promote the academic
objectives and educational success of
the child. It also certainly includes
the health, safety and welfare of the
child.
The court will want assurances
that the parent seeking custody can provide
a safe, healthy and wholesome environment
in which to raise the child. Many other
factors may contribute to the “best
interest” calculus. This may contribute
to the spiritual and religious persuasions
of the parents, the urban or suburban
settings in which the child is raised,
the other residents of the household
in which the child will be living, the
presence or absence of a parent during
the business day and on weekends, economic
circumstances and child support obligations,
bedroom space and other living arrangements,
and any special needs the child may have.
More and more often the courts are favoring
the parent who demonstrates the greater
ability to communicate with the other
parent and other family members. Communication
and cooperation, or what some courts
and psychologists refer to as co-parenting,
are often given great weight in child
custody process.
The court will also be interested in
knowing about the history of any domestic
violence between the parents or between
either parent and a child.
The parent who maintains primary custody
of the child is generally known as the “custodial
parent,” and the other parent is
generally known as the “non-custodial
parent.” Many courts distinguish
between legal custody and residential
custody or physical custody. Legal custody
refers to the right to custody in general,
including the right to participate in
significant decision-making relating
to the child. Where parties have joint
legal custody, they are required to communicate
and participate jointly in making decisions
about how to raise their children, regardless
of where their children spend most of
their time.
A parent with sole legal
custody would normally make decisions
on her own. A parent with joint legal
custody would, however, be required to
communicate and consult with the other
parent on such important issues as medical
treatment for the child, private school
education, overseas travel, and the like.
Residential custody or physical custody
usually refers to where the child sleeps
at night most of the time. Thus, for
example, if a child lives primarily at
his mother’s home, but visits his
father on alternating weekends, the mother
will be said to have physical custody
and she will generally be regarded as
the custodial parent, even if the father
has liberal visitation rights and even
if the parties have joint legal custody.
These terms vary from state to state,
and they may not apply universally.
The non-custodial parent is generally
entitled to visitation time with the
children, sometimes referred to as parenting
time, shared custody, partial custody,
or joint parental responsibility. No
textbook or law book specifies how much
time the visiting parent should spend
with the children. Usually, the timetable
is arranged between the parties or ordered
by the court based on what serves the
children’s best interest. Unfortunately,
many couples have difficulty establishing
a custody and visitation plan without
conflict.
Domestic relations courts are
often backlogged with motions and petitions
filed by parents fighting each other
over custody and visitation rights. In
many cases, the court finds itself referring
the parents to mediators, therapists,
social workers, and various kinds of
court personnel, to assist in effectuating
the custody and visitation plan. Sometimes,
police become involved in the process.
Where one party refuses to cooperate
or obey a court order, it is necessary
for the court to enter a contempt order
and to enforce the custody and visitation
timetable.
Some parents are notoriously disobedient
in dealing with their children. In some
cases, mothers are guilty of alienating
the children away from their fathers,
by casting their fathers in a negative
light and over-scheduling the children
so that they are busy with school and
recreational activities whenever their
father has a scheduled visitation weekend.
In extreme cases, mothers may be guilty
of “parental alienation syndrome.”
There
are other technical devices, schemes
and syndromes which may apply to custody
interference cases as well. Sometimes,
a parent is troubled by the fact that
the children’s father or mother
is now living with a new girlfriend or
boyfriend who poses a danger or a risk
to the children. Indeed, new stepparents,
half-brothers, and half-sisters may raise
a number of concerns as families form
and re-form over the passage of time. |