Custody Arrangements

1. Does custody always go to just one parent?

No. Courts frequently award at least some aspects of custody to both parents, called "joint custody." Joint custody usually takes at least one of three forms:

• joint physical custody (children spend a relatively equal amount of time with each parent)
• joint legal custody (medical, educational, religious and other decisions about the children are shared), or
• both joint legal and joint physical custody.

In every state, courts are willing to order joint legal custody, but about half the states are reluctant to order joint physical custody unless both parents agree to it and they appear to be sufficiently able to communicate and cooperate with each other. In New Mexico and New Hampshire, courts are required to award joint custody except where the children's best interests-or a parent's health or safety-would be compromised. Many other states expressly allow their courts to order joint custody even if one parent objects to such an arrangement.

2. Can someone other than the parents have physical or legal custody?

Sometimes neither parent can suitably assume custody of the children, perhaps because of a substance abuse or mental health problem. In these situations, others may be granted custody of the children or given a temporary guardianship or foster care arrangement by a court.

Types of Custody:

Legal Custody

Legal custody of a child is the right and obligation to make decisions about a child's upbringing. Decisions regarding schooling, and medical and dental care, for example, are made by a parent with legal custody. In many states, courts now award joint legal custody to the parents, which means that the decision-making is shared.

Physical Custody

Physical custody is the right of a parent to have a child live with him. Some states recognize the concept of joint physical custody where the child spends approximately half the time in each parent's home.

Sole Custody

Sole custody means that only the custodial parent has physical custody and legal custody of a child, and that the noncustodial parent has visitation rights. In most states, one parent is awarded sole custody of the children, although, if there is more than one child, one parent may have sole custody of one child and the other parent sole custody of the other. (This is unusual, however, as most judges are reluctant to separate siblings.) In some situations, one parent is given sole physical custody, but legal custody is exercised jointly by the parents.

Joint Custody

Parents who don't live together have joint custody (also called shared custody) when they agree, or a court orders them, to share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, no longer cohabiting or even if they never lived together. Joint custody may be joint legal custody, joint physical custody (where the children spend a significant portion of time with each parent) or both. It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.

Usually, when parents share joint custody, they work out joint physical custody according to their schedules and housing arrangements. If the parents cannot agree, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house. Other joint physical custody arrangements include alternating years or six-month periods, or spending weekends and holidays with one parent while spending weekdays with the other.

Joint custody has the advantages of assuring the children continuing contact and involvement with both parents, and alleviating some of the burdens of parenting for each parent. There are, of course, disadvantages--children must be shuttled around, parental non-cooperation can have seriously devastating effects on children and maintaining two homes for the children can be expensive.

Bird's Nest Custody

Bird's nest custody is a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out.

1. What does reasonable visitation mean?

When a court determines the visitation rights of a noncustodial parent, it usually orders visitation at reasonable times and places, leaving it to the parents to work out a more precise schedule. Reasonable times and places allows the parents to exercise flexibility by taking into consideration both the parents' and the child's schedules. For the reasonable visitation approach to succeed, however, the parents must cooperate and communicate with each other frequently.

2. What is a fixed visitation schedule?

Sometimes courts ordering custody and visitation for children set up schedules, including the times and places for visitation with the noncustodial parent, such as every other weekend or Tuesday and Thursday evenings. A court will be inclined to order a fixed schedule especially if the hostility between the parents is so severe that the constant contact between them may be of detriment to the child.

3. My ex-spouse was physically abusive to me and the children. How can abuse be prevented during visits with the children?

When a noncustodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between that parent and the child be supervised. This means that an adult (other than the custodial parent) must be present at all times during the visit. The adult may be known or unknown to the child, and may be someone agreed upon by the parents or appointed by the court. No matter how the adult is chosen, he must be approved by the court ordering the supervised visitation.

Parenting Agreements

To successfully negotiate with the other parent, or to work well with any professional, you will want to collect and review all relevant documents. These include:

• court documents you have filed or received, such as a "summons," "petition," "complaint," "response," "answer," "declaration" or "affidavit";
• correspondence from an attorney, counselor, mediator or court official regarding a separation, divorce, paternity, child support, custody or visitation;
• court orders regarding a legal separation, divorce, paternity declaration or award of custody;
• previously mediated, arbitrated or negotiated agreements between you and the other parent
• documents dissolving your religious marriage, or describing your marital status and your options according to your religious denomination; and
• reports, letters or evaluations from school officials, counselors, therapists or others who have an insight into your children.

Carefully read the documents you gather. If you need help in finding or understanding any of them, an attorney, court clerk, paralegal, marriage counselor, mediator, member of the clergy or other professional might be useful. Chapter 11 offers tips on finding people and resources to help you.

You won't necessarily need all of these documents to develop a parenting plan. Nevertheless, having them can help expedite matters, especially if you are going through a legal separation or divorce. For example, if you or the other parent have already initiated a court proceeding, you may have a deadline for submitting your parenting agreement. If you begin negotiations and they seem to be going well, you will probably want to ask the court for an extension of time (called a "continuance") to let your negotiations continue. In short, you need to know where you stand right now so you can take all necessary steps to finalize your agreement, assure your rights and satisfy all legal requirements.

Mediation

1. I've heard that mediation is the best approach to solving disagreements about child custody. Is this true?

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute. The mediator does not have power to impose a solution on the parties, but assists them in creating an agreement of their own. (In Alaska, California, Delaware, Michigan, New Mexico and South Dakota, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement.)

There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.

• Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
• Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
• Mediation enhances communication between the couple and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

How to Find a Family Law Mediator

Several states require mediation in custody and visitation disputes and a number of others allow courts to order mediation. In these situations, the court will direct the parents to the mediator and will pay for the services. Parents can also find and pay for the mediator themselves. With increasing frequency, family law attorneys are offering mediation services for child custody and other divorce-related disputes, as are a number of non-lawyer community mediators. Two resources for finding a family law mediator in your area are:

Academy of Family Mediators
4 Militia Drive
Lexington, MA 02173
(617) 674-2663

Society of Professionals in Dispute Resolution (SPIDR)
815 15th Street NW, Suite 530
Washington, DC 20005
(202) 783-7277

2. Things are so bitter between my ex and me that it's hard to see us sitting down together to work things out. How can mediation possibly work?

Mediators are very skilled at getting parents who are bitter enemies to cooperate for the sake of their children. The more parents can agree on the details of separate parenting, the better it will be for them and their children. And mediators are skilled at getting the parents to recognize this fact and then move forward towards negotiating a sensible parenting agreement. If there is a history of abuse or the parents initially cannot stand to be in the same room with each other, the mediator can meet with each parent separately and ferry messages back and forth until agreement on at least some issues is reached. At this point, the parties may be willing to meet face-to-face.

Process of Determining Custody & Visitation

1. What factors do courts take into account when deciding who gets custody of the children?

A court gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends upon many factors, including:

• the child's age, gender, mental and physical health
• the mental and physical health of the parents
• the lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
• the love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance
• the parent's ability to provide the child with food, shelter, clothing and medical care
• the child's established living pattern (school, home, community, religious institution)
• the quality of the schools attended by the children
• the child's preference, if the child is above a certain age (usually about 12), and
• the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.

2. When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?

The parent with physical custody is generally in the driver's seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a maximum amount of time with each parent. Unfortunately, it all too often translates into very little visitation time with the noncustodial parent, and lots of bitter disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement) which sets the visitation schedule and outlines who has responsibility for decisions affecting the children.

3. Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?

In a few states, including Alaska, California, District of Columbia, New Mexico and Pennsylvania, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child. As a practical matter, however, lesbian and gay parents-even in those states-may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.

4. Is race ever an issue in custody or visitation decisions?

The U.S. Supreme Court has ruled it unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In that case, a white couple had divorced, and the mother had been awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially a racial one, cannot be the basis for a custody decision. (Palmore v. Sidoti, 466 U.S. 429 (1984).)

5. Are mothers more likely to be awarded custody over fathers?

In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. No state requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests without regard to the sex of the parent.

As it turns out, most divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that the mother has more time, a greater inclination or a better understanding of the children's daily needs.

Interference with Custody or Visitation

1. I have sole physical custody of our children. Several times my ex has not returned the kids on time after taking them for a visit, and I'm scared one day he won't return them at all. What are my rights as the custodial parent?

In most states, it's a crime to take a child from his or her parent with the intent to interfere with that parent's physical custody of the child (even if the taker also has custody rights). This crime commonly is referred to as "custodial interference." In most states, the parent deprived of custody may sue the taker for damages, as well as get help from the police to have the child returned.

If a parent without physical custody (who may or may not have visitation rights) removes a child from-or refuses to return a child to-the parent with physical custody, it is considered kidnapping or child concealment in addition to being custodial interference. Federal and state laws have been passed to prosecute and punish parents guilty of this type of kidnapping, which is a felony in over 40 states.

In many states, interfering with a parent's custody is a felony if the child is taken out-of-state. Many states, however, recognize good-cause defenses, such as where the taker acted to prevent imminent bodily harm to self or to the child. In addition, some states let a parent take a child out-of-state if the parent is requesting custody in court and has notified the court or police of the child's location.

Modification of Custody or Visitation

1. Under what circumstances can custody and visitation orders be changed within the state where they were obtained?

After a final decree of divorce or other order establishing custody and visitation (such as a paternity decree) is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") may be made without court approval. If one parent later reneges on the agreement, however, the other person may not be able to enforce it unless the court has approved the modification. Thus, it is generally advisable to obtain a court's blessing before relying on such agreements. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child.

If a parent wants to change an existing court order and the other parent won't agree to the change, he or she must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.

2. What qualifies as a substantial change in circumstances?

• Geographic move. If a custodial parent makes a significant move, or the move will seriously disrupt the stability of the child's life, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order. Some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children. If no agreement is reached, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.
• Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent's lifestyle threatens or harms the child. If, for example, a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case.

Interstate Custody Arrangements

1. I have sole custody of my children. My ex, who lives in another state, has threatened to go to court in his state and get the custody order changed. Can he do that?

All states and the District of Columbia have enacted a statute called the Uniform Child Custody Jurisdiction Act, which sets standards for when a court may make a custody determination and when a court must defer to an existing determination from another state. In general, a state may make a custody decision about a child if (in order of preference):

• the state is the child's home state-this means the child has resided in the state for the six previous months, or was residing in the state but is absent because a parent has removed the child from or retained the child outside of the state.
• there are significant connections with people-such as teachers, doctors and grandparents-and substantial evidence in the state concerning the child's care, protection, training and personal relationships.
• the child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
• no other state can meet one of the above three tests, or a state can meet at least one of the tests but has declined to make a custody decision.

If a state cannot meet one of these tests, even if the child is present in the state, the courts of that state cannot make a custody award. Also, a parent who has wrongfully removed or retained a child in order to create a home state or significant connections will be denied custody. In the event more than one state meets the above standards, the law requires that only one state award custody. This means that once the first state makes a custody award, another state can neither make another "initial" award nor modify the existing order.

Having the same law in all states helps achieve consistency in the treatment of custody decrees. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.

Example: Sam and Diane met and married in Missouri. They moved to Delaware where their child (Sam Jr.) was born. Sam, Diane and Junior lived in Delaware until Junior was ten. At that time, Sam took Junior to Missouri in an effort to divorce Diane and raise Junior himself. When Sam went to court in Missouri and requested custody, his request was denied because Delaware is Junior's home state, the state with which he has significant connections, and Sam removed Junior from Delaware in an effort to create home state jurisdiction in Missouri. Diane should go to court in Delaware and request custody, even though Junior is in Missouri.

Full Faith and Credit

Full faith and credit is a legal principle requiring judges to recognize and enforce valid decrees and judgments issued by courts in other states.

In the past, states often did not afford full faith and credit to custody decisions of courts in other states, preferring instead to decide the issues on the evidence before them. This often led to contradictory custody orders and sometimes children were kidnapped and thrown back and forth. Now, however, the Uniform Child Custody Jurisdiction Act requires states to give full faith and credit to custody decisions rendered in other states.

Other Child Custody Resources

National Center for Lesbian Rights, 870 Market Street, Suite 570, San Francisco, CA 94102, (415) 392-6257, provides legal information, referrals and assistance to lesbian and gay parents.

National Congress for Fathers and Children, P.O. Box 171675, Kansas City, KS 66117, (800) 733-3237, provides information and assistance for fathers.

Mothers Without Custody, P.O. Box 36, Woodstock, IL 60098, (800) 457-6962, offers assistance to women involved in custody struggles.

Joint Custody Association, 10606 Wilkins Avenue, Los Angeles, CA 90024 (310) 475-5352, provides assistance to joint custodial parents.