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Child Custody During A Divorce

Child Custody
Child custody, visitation and even child support are often the most highly litigated aspects of a divorce case. During the divorce proceedings your divorce attorney or family lawyer will convey to the court your expected outcome on the custody of any children.  In deciding these areas of a divorce case, the court's guiding principle is almost always to determine what is in the best interest of the child or children. It is important to hire a divorce attorney or family lawyer for your best chance of winning your case.

Custody is divided into two types: legal custody and physical custody.  Legal custody relates to the parents' ability and authority to make fundamental decisions about the child's health and welfare, such as health care, education, religion and other issues.  In contrast, physical custody involves the control over the living arrangements of the child.

Most courts award joint legal custody, allowing both parents to have input into these decisions.  Sole legal custody allows the parent with these rights to make the decisions without input from the non-custody parent.  In shared legal custody, neither parent can prevent the other from providing input on a fundamental decision. 

A parent with sole physical custody has the exclusive right to live with the child, and the former spouse has child visitation rights.  Parents with joint physical custody divide the child's time between the two parents based on a schedule established by the parents and approved by the court. Depending on the needs and facts of the case, the schedule could be every other week, summers, or every other weekend. If the parents cannot agree on a schedule, the court (after interviewing the parents, the children, and the appropriate experts) will impose a schedule on the parents (and children).

In making child custody decisions, the current trend among the courts is to award joint legal custody to the parties, with sole physical custody to one of the parties and generous visitation rights to the non-custodial parent. However, the courts in every state are authorized to award joint physical custody if they find that it is in the best interests of the child, and in a few states, the law requires the court to award joint physical custody-unless the court finds that joint physical custody is not in the best interests of the child.

Rarely, where neither party is capable of being an effective parent, the court will refuse to award custody to either parent, and instead will award custody to another family member, or, in extreme cases, to a court-appointed guardian or foster parent.

Factors Governing Child Custody Disputes
Notwithstanding the trends and the court's preference for joint custody, a parent may request that the court grant exclusive physical custody of the children. Courts typically weigh the following factors in deciding child custody disputes:
  • The parents' ability to agree, communicate and cooperate in matters relating to the child.
  • The parents' willingness to accept custody.
  • Any history of unwillingness to allow child visitation not based on substantiated abuse.
  • The interaction and relationship of the child with its parents and siblings.
  • The history of domestic violence, if any.
  • The safety of the child.
  • The safety of either parent from physical abuse by the other party.
  • The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
  • The needs of the child.
  • The stability of the home environment offered.
  • The quality and continuity of the child's education.
  • The fitness of the parents
  • The geographic proximity of the parents' homes.
  • The extent and quality of the time spent with the child prior to or subsequent to the separation.
  • The parents' employment responsibilities.
  • The age and number of the children.
To make sure you show the court you fulfill all these qualities, contact a divorce attorney or family lawyer or Child Custody Lawyer in your area.
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