Child Custody & Visitation Rights


Child custody is oftentimes a tedious issue to address in situations of divorce and separation. While the best possible outcome would be one where both parents agree to work out a child custody agreement between themselves, more often than not, child custody issues are settled in court.

Two Types of Child Custody

  • There are two types of child custody--physical custody and legal custody. Physical custody means that the children actually lives full-time with the parent who is granted physical custody. The absent parent is usually awarded visitation rights a few days or nights a week while the other parent is awarded physical custody. Legal custody is much different and more powerful than physical custody. Legal custody means that the parent to whom it is granted has the legal right to make all decisions regarding the child and his or her best interests without consulting the absent parent.

    Either type of custody may be granted to one parent or shared equally between both parents. Shared custody of either type is referred to as joint custody.

What Does Joint Physical Custody Mean?

  • Joint physical custody means that the child spends equal amounts of time during the year with both parents alternately. This could be broken down in terms of weekends, holidays, summer months or other convenient times for both parties.

    Just because joint physical custody is granted doesn't mean it has to happen. If one parent can't or doesn't want to have their time with the child, they cannot be forced to do so. On the other hand, one parent cannot keep a child away from the other parent during scheduled joint custody periods and can face criminal charges for attempting to do so.

What Does Joint Legal Custody Mean?

  • Joint legal custody means that both parents have a right to be an active part of the decision making process involving a shared child. This can be for insurance purposes, other legal affairs and medical treatments as well. One parent cannot go against the other's wishes and make the decision on his or her own unless a prior agreement is reached. A parent can face criminal charges for doing so.

What Are the Deciding Factors in Determining Child Custody?

  • There are no hard and fast rules that the court uses to determine which parent to award custody. Most courts try to be fair and balanced in their rulings, allowing both parents equal access to their children. However, if one parent has an extensive criminal record, a history of drug use or a poor home environment, these things could sway the court's decision. Other factors that the courts may consider are the ethnicity of the child and to which parent he could better relate, which parent has had a more active role in the child's life, and which parent could provide the best home setting for the child.

Court Orders

  • These laws do not apply without a court order having been established. Until that time, both parents have equal rights, under the law, to their child. That means that if one parent decides to take the child and move across the country, the other parent has no legal ground to stand on in getting the child back unless and until a court order is in place. This scenario deals with married parents only. In the event that the parents of a child are not married, the mother has sole legal custody of the child unless and until a court order establishes otherwise.

State-by-State Variation

  • Because child visitation and custody laws can and may vary greatly from state to state, the most accurate information regarding your personal situation may be obtained through your local family and probate courts.


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