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The issue of custody is often the most emotional and stressful part of the divorce process. The Courts are often placed in the difficult position of deciding with whom children will live and who will make decisions affecting the children’s lives.

The Court has jurisdiction over the custody of children until they are 18 years old. After that, the Court does not have power to make any custody decisions.

There are two types of custody, physical custody and legal custody. Physical custody refers to with whom the children actually live. Legal custody deals with who makes the important decisions affecting the children’s lives.

There are certain terms that come up often in cases involving custody. It is helpful to have an understanding of these terms:

  • Sole legal custody- this is when one person makes all the decisions affecting the child or children’s health, education and welfare.
  • Joint legal custody- this is when the parents share in the process of making decisions affecting the child or children’s health, education and welfare
  • Residential custody- this is when one parent’s residence is deemed the child’s residence. This often comes up in terms of deciding which school district a child belongs in.
  • Primary physical custody- this is when one parent has custody/access with the children the majority of the time.
  • Shared physical custody- This is when the parents share physical custody of the children, meaning both parents have custody of the children at least 35 percent of the time.
  • In any given case a spouse can have a combination of any of the above  

How is it decided who has legal custody of the children?

  • Before any legal proceedings begin, it is presumed that both parents are fit to have legal custody (i.e., make decisions about their children’s lives). Therefore, unless the court is presented with a reason to do otherwise, it will likely award parents joint legal custody of their children so long it can be shown that the parents have the ability to consult each other and come to joint decisions about important issues affecting the children’s welfare.
  • Courts can also award one parent “tie breaking” authority. This would come into play if the Court finds Joint Legal Custody appropriate but the parties may have difficulty deciding upon certain areas of the child(ren )’s welfare. In these instances, the Court may award one parent the “last word” after the parties consult with one another and attempt to come to an agreement. In this type of Joint Legal Custody arrangement, the Court may also grant each or one parent the ability to make the final decision in a particular area or areas; e,g, extra-curricular activities, religion, etc. The Court has great discretion and authority to tailor a custody arrangement that suits each particular case. The Court, for example, will consider the following factors in determining whether or not to award parents joint legal custody.
  1. Capacity of parents to communicate
  2. Willingness of parents to share custody
  3. Sincerity of the parents requests
  4. Shared parenting values
  5. One parent is not alienating the natural affection that the child(ren) may have towards the other parent

How is it decided who has physical custody of the children?

Just as with legal custody, it is presumed that both parents are fit to have physical custody of the children. In recent years, Courts have been encouraged to award shared physical custody of children to the parents where the parties can show that they are able to communicate with one another as to the best interests of the child(ren) and that they live in some proximity to one another so they can implement a schedule suitable to the child(ren) and their school and activities..

A seminal case involving custody of children is the case of Montgomery vs. Sanders. In this case, the Court specified certain factors to consider is deciding who shall have custody of children. The factors are as follows:

  • Fitness of the parents
  • Character and reputation of the parties
  • Desire of the natural parents and agreements between the parties
  • Potentiality of maintaining natural family relations
  • Preference of the child
  • Material opportunities affecting the child
  • Residences of parents and opportunity for visitation
  • Length of the separation from the natural parents
  • Prior voluntary abandonment

What is the difference between “custody” and “visitation”?

In some instances, the court will award one parent primary physical custody of the children. This means that the child or children live with one parent most of the time. In those instances, the other parent will often be awarded visitation. That means that the parent with visitation will have pre-determined days/times to spend with the children.

What is a “Best Interest” Attorney?

In some cases (usually cases that are highly contested), the Court will appoint an attorney to make an independent evaluation of what custodial arrangement is best for the child. This person is referred to as Best Interest Attorney (BIA). The Court also has at its disposal the ability to appoint a Social Worker to conduct a “home study” and make similar recommendations as to custody and access schedules. Unlike the appointment of a social worker, the Court allocates the fees of the BIA amongst the litigants.

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