When a marriage or family breaks up, and children are involved, there is a process that must be followed to determine proper custody and a visitation schedule. Family law presides over these situations, and everything must be documented and approved by a court of law. So what exactly do custody and visitation mean?
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What is Custody and Visitation Law?
When a couple splits up, they must decide who will be the custodial parent, meaning the sole provider for the child and the person the child lives with on a regular and permanent basis. If parents cannot agree on what is best for the child, a judge will decide for them. Child custody and visitation law stipulates how these things must be determined and carried out. There are very strict laws about child custody and visitation all centering on “what is best for the child.” Family law experts help the court to decide what the best course of action is, if the parents cannot communicate effectively enough to agree.
There are two types of custody, legal and physical. Within both parents can share custody, which is called “joint custody” or one parent can have “sole custody.”
The parent that the child lives with has physical custody and is responsible for their living needs, shelter, food, clothing, safety, and medical care. These things may be shared, or a single parent may have sole physical custody and be exclusively responsible for the care of the child.
Physical custody may also be shared where the child is with one parent 3-4 days a week and the other parent the remainder of the week.
Legal custody is the parent’s rights and responsibility about making decisions for the child’s wellbeing, education and health, and religious upbringing. This custody type may also be shared/joint or sole with one parent making all the legal decisions affecting the child.
Along with the divorce settlement, a couple must fill out paperwork and have a judge sign off on a custody order. A custody order is an important document spelling out who has physical and legal custody of the child or children and who has the financial responsibility to support them. Financial arrangements are called “child support” and are usually paid by the non-custodial parent.
Often, if the couple is at war, a court will step in and issue a temporary custody order until the final details of the permanent custody order are finalized. A judge along with a panel of social workers will determine what is best for the child and the family if they cannot decide for themselves. The custody order will define who has what type of custody and the terms. Sometimes one parent will sue for sole custody if they believe their ex-partner is not serving the children’s needs appropriately.
Along with the custody order, another matter of business to be settled is visitation. A visitation order gives the non-custodial parent visitation rights. Not all parents get visitation rights to their children after divorce if it is in the best interest of the child to keep them from the other parent.
Visitation schedules vary a lot and sometimes parents will petition the court to modify the schedule or enforce it if they are being denied access to their children. Any changes made to visitation have to go through the court system and be approved by a judge.
Visitation schedules also apply to holidays, summer schedules and other out-of-the-ordinary circumstances. When the order is executed, every base is covered. In some cases visitation is supervised, meaning the parent can only see the child with another third-party present.
How to Get a Custody and Visitation Order
During the process of separation and divorce or even years after, disputes can arise between parents and the need for a new custody or visitation order. To get the ball rolling one parent will petition the court for a change (if already within a case) or open a new case. If the parents both agree then all that is needed is a judge’s signature. If they do not agree, then a hearing will be scheduled to discuss within 60 days.
If an existing order is already in place, the parent petitioning the court for a change must prove “changed circumstances.” In the motion, the parent must clearly state what it is they want for visitation or custody.
Each state has differing laws on child visitation and custody and a lot of factors are taken into consideration such as the child’s age, gender, relationship with the parent(s), health and wellbeing, mental state, any abuse, the child’s wishes, and their connection to their home and community and the effect of a change on them.
Historically most states favored the mother for physical custody of the children, but current norms are changing and often a father will get joint or sole physical custody to care for his children.
Visitation or Custody Violations
Violation of a custody or visitation order is a serious offense involving the police. Because these laws affect the lives of children, offenders are often dealt with harshly.