The most emotional decision in most divorces is the question of who will get custody of the children. Both parents have an equal right to custody and ideally they will be able to reach an agreement as to custody of the children after the marriage is dissolved. Many parents are able to agree to a joint custody or a split custody agreement or agree one parent will be the primary custodian with the other parent having visitation rights.
If the parents cannot reach a mutually agreeable arrangement the court will determine what type of custody arrangement is, in the court’s opinion, in the best interests of the child.
Allowing the court to determine a custody arrangement should be the option of last resort. All other possible measures should be tried before the parents give up their control to structure an agreement that is in their best interests and the best interests of their children. Reaching an agreement without litigation is also less emotionally damaging to the children and certainly less expensive for the parents.
If you are not able to reach a custody agreement on your own try a mediator before you resort to litigation. Many domestic courts will require mediation prior to a custody hearing. Even if your state does not require mediation it is worth the expense and effort to try a mediation session unless you are dealing with a parent who is totally unable to care for a child and insists on doing so.
Typical types of custody arrangements you and your spouse may agree to or the court may order include:
One of the most advantageous custody arrangements for the children and the parents is joint physical and legal custody. This type of agreement allows for the responsibility of raising the children to be shared without over burdening one parent. When the children are in the physical custody of one parent, that parent has the responsibility for ensuring that the children are properly cared for.
A joint custody agreement is typically agreed to by both parents and the terms specified in an agreement written by the parents. The court can order but seldom does order a joint custody arrangement probably because the judge believes if the parents cannot reach a joint custody agreement they will not be able to share responsibility for raising their children without continuing problems.
If you are asking the court to determine custody it is more likely that the judge will order split or sole custody. A split custody agreement would typically provide for extended periods of custody for each parent. For example one parent may have custody during the school year and one during the summer or maybe provide custody for alternating weeks if the parents are in the same town.
Sole custody involves one parent having primary custody and the other having short visitations with the child on a specified schedule and sometimes in supervised situations. This is usually reserved to instances where there is neglect, drug or alcohol abuse, a history of child abuse or mental instability.
If both parents are deceased or deemed unfit the court can award custody to a third-party upon that party’s petition to the court. A third party who is awarded custody is typically a grandparent or other close relative that has a prior relationship with the child.
The court may order any of these custody arrangements or the arrangements can be part of a voluntary agreement entered into by the parents. In either case the custody arrangement may always be reviewed by the court upon petition of one of the parties if the situation at the time of the petition is substantially different than when the original custody arrangement was made.
Continue Reading: Child Visitation Rights: How Are They Decided?