Divorce can be an ugly affair especially when children are involved and child custody must be determined.  Though both sides may have divorce lawyers, they may not have child custody lawyers.  The states have different child custody laws so it may be necessary to hire a lawyer who specializes in child custody or family court cases to ensure that the rights of the children and both parents are protected throughout the court proceedings.

Determining Child Custody During Divorce Proceedings

Child custody is mutually agreed upon by the parents without intervention from courts in 95% of cases.[2]  When parents are unable to agree, a judge from family court will make the decision after both individuals present their case.

Judges in family court take several factors into consideration when determining the issue of Family Court; Source: Microsoft OfficeCredit: Source: Microsoft Officechild custody.  First and foremost, the decision is based on what the judge believes is in the best interest of the child or children.

Family court judges take into consideration the financial status of the mom and dad and the health and lifestyle of each.  They also consider the kids' ages, health, gender, their relationship with each parent and their current living situations. Judges often ask teenagers or older kids which parent they prefer to live with and take those preferences into consideration for the final decision.  A child may voice a preference, but it does not mean custody will be given automatically to that person.  In cases where neither the mom nor the dad displays a clear favorable situation over the other, judges usually maintain the stability in the child’s current routine and lifestyle.

At times, the court orders a mediator to help with the decision making process. Parents must meet with the mediator to help the parties come to an agreement and if parents are not able to come to a mutual agreement, the mediator makes a recommendation to the court. Sometimes, both or one of the parties hire a mental health therapist to access the child or children and make a recommendation to the court.

Types of Child Custody

Physical custody and legal custody are the two main types of child custody.  Legal custody means the right to make decisions about the child’s lifestyle which includes educational, medical and religious aspects.[4]  Physical custody is where the child actually lives.[4]  People can be awarded either physical custody, legal custody, or both.

Child Custody; Source: Morguefile.comCredit: Source: Morguefile.comWhen both physical and legal custody is awarded to either the mother or the father, the law defines this as sole custody.[4]  This is the custodial parent.  The other person, the non-custodial parent, may or may not be granted visitation rights.  Joint custody is when both mother and father share legal and physical custody of the child.[4]  The parameters of the arrangements are mutually agreed on between the two in most cases; in others when they are unable to come to an agreement, the court decides the parameters of the arrangements. This includes where the child will be staying on holidays and weekends, summers, school holidays and other special days.

In rare cases, the parents who have already been awarded joint custody may decide not to move the child between homes. The child stays in one home and the parents move in an out according to a specific schedule.  This is called bird’s nest custody. The courts do not initiate this type of child custody; it is strictly an agreement between parents.

Visitation Rights and the Rights of Grandparents and Siblings

An aspect of the rights of kids is the ability and opportunity for them to have a relationship with their biological parents. Visitations rights are thus a crucial piece of maintaining a child’s rights in a divorce proceeding as well as the rights of the mother and father.  Visitations allow Visitation Rights; Source: MorguefileCredit: Source: Morguefilenon-custodial parents to spend time with their kids. Visitation rights for fathers and mothers are the same.

Visitation is usually granted by the family court judge during the child custody hearing.  When the judge orders reasonable visitation, this means the mother and father are left to arrange the parameters of the visits, but the custodial parent has more control over the parameters (day, time, location, duration) of the visits and this can cause some conflict. In cases of discord, the judge can order fixed visitations which mean the parameters of the visits are determined by the court. 

In cases where the non-custodial parent has a history of violence towards the other parent or child, the court may order supervised visits during which an adult monitors the visit.  The parameters of the supervised visits are set by the court, and also if an agency is involved, the scheduling restrictions of the agency.  For example, the court may issue supervised visits twice weekly for one hour each visit.  The days and times may be based on the agency’s availability for providing the supervisor of the visits.  Monitors for supervised visitations can be another family member approved by tGrandparents Rights; Source: MorguefileCredit: Source: Morguefilehe courts or it may entail a social worker or trained monitor from an agency.

In the current laws, there is none that automatically grant visitation rights to grandparents.[2] However, the Visitation Rights Enforcement Act of 1998 does allow grandparents who were granted visitation rights in one state to carry them forward to another state. For example, if a grandparent is granted visitation in Montana and the grandchild moves to Colorado, the grandparent has the rights awarded in Colorado.  Otherwise, visitations by grandparents are left to the discretion of the custodial Siblings May be Separated; Source: MorguefileCredit: Source: Morguefileparent(s).[2]

There are also no current laws that allow siblings to automatically have visitations.[2] The custodial parent must grant permission for siblings to visit. In cases where the custodial parent dies, siblings must successfully petition the state or be given permission from the new custodial parent.[5]

What is Child Support?

Laws state parents are responsible for supporting their kids even when the parents are divorced. Monetary payments made by the non-custodial parent to the custodial parent fulfill the responsibility when moms and dads are no longer together. These monetary payments are referred to as child support.  In sole custody cases, the custodial parent is considered to provide support by being the primary caretaker; the non-custodial parent must do his or her part by providing monetary support.  In joint custody cases, child support is determined by several factors including both parents’ income and the amount of time each parent is caring for the child.

Support payments are required to be made until one of the following conditions is met:

  • The child reaches the age of 18 or 21 depending on the state
  • The child is legally emancipated
  • The child goes on active military duty

In some cases support is required longer if the child has special needs or is in college.  Child support payments are taken seriously by the law and if a parent fails to make payments ordered by the court, he or she could end up in jail.

Who is Required to Make Child Support Payments?

When married couples conceive a baby, the husband is automatically deemed to be the baby’s father and if he is not the custodial parent, may be required to pay child support. When a child of a couple is not the biological offspring of both parents, there may be several concerns during the child support phase of the divorce proceedings. Kids born out of wedlock must establish paternity before child support is ordered. In general, those required to pay child support are:

  • The biological father of a baby born out of wedlock;
  • A man married to the mother when the baby is conceived;
  • A man who marries the mother after the baby is born and agrees to support the child; or
  • A man who rears a child as his own son or daughter.

Custodial fathers have the right to receive child support payments from the mothers; stepparents are not required to pay child support. This can be a confusing issue and it may be wise to consult with a family attorney who is well versed in child custody laws.[3]

How Much Child Support Must be Paid?

Child Support; Source: MorguefileCredit: Source: MorguefileThe amount of child support ordered varies by cases and by state. Judges will consider the income of the custodial parent and how much is needed to care for the kid(s); the income of the non-custodial parent and the ability to pay; the educational, health and other needs of the kid(s); and the standard of living the kid(s) had before the divorce. There are state guidelines that are generally followed in sole custody cases.

In joint custody cases, the judge considers the income of both parents and how much time is spent with each parent. Joint legal custody cases do not necessarily reduce the amount a parent might pay in child support. The custodial parent, the parent with physical custody, will still absorb most of the day-to-day costs required to raise the child and therefore, the non-custodial parent may be required to pay the full amount of child support according to the state guidelines. If parents have joint physical custody, and neither parent’s income is significantly higher than the other’s, there may be no support ordered. If one parent does have a significantly higher income,  support may be reduced based on the amount of time the child spends with the paying parent.

Divorce is never easy and when kids are involved, it can be excruciating for the parents. There are so many factors to consider. Often parents use the kids as pawns in the divorce proceedings.  It is wise to consult with a family lawyer who has experience and knowledge in child custody and support matters.  This can help ensure that the child or children’s rights do not get overlooked.


The copyright of the article Child Custody and Visitation Rights is owned by Cheryl Weldon and permission to republish in print or online must be granted by the author in writing.

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Child Custody, a Child waiting for weekend custody visitation