Child custody and visitation is often the most emotional and difficult issue for parties to a dissolution of marriage or paternity case. Being familiarized with the relevant law and applicable procedures helps to minimize the stress and apprehension experienced in dealing with this important issue.

Legal Custody

Legal custody refers to the legal status that enables parents to make decisions concerning their child’s or children’s health, safety, education, and welfare. Joint legal custody means that both parents equally share the right to make these decisions and should cooperate in decision-making, but that either parent has the power to make decisions alone. While it is typically more difficult when the parents do not reside together, the parties are expected to make these decisions in much the same manner as they did when they were together.

Sole legal custody means only one parent can make decisions and obtain information from the child’s or children’s school and doctor, for example. Sole legal custody is not frequently ordered and is most common in cases in which one parent is not trusted to make a positive contribution to the decisions, such as when drug or alcohol abuse or child abuse and neglect is present. Sole legal custody is also sometimes ordered in cases involving high conflict between the parents which prevents the parties from cooperating in making joint decisions.

Physical Custody

Physical custody refers to where the child or children reside. When both parents have significant – although not necessarily equal – periods of physical custody, it is referred to as joint physical custody. When the child or children reside mostly with one parent with the other parent having visitation, the parent is said to have “primary physical custody.” “Sole physical custody” describes a circumstance in which the visiting parent’s visitation is very limited.

The physical custody arrangement can be determined by the parents or the court. If the parents reach an agreement, the court will ordinarily approve it regardless of whether the court would have made a different decision had the issue been presented to the court for consideration. If the parties are unable to reach an agreement, the court has a process to resolve the issue. Each court’s process differs slightly, but the general structure is fairly uniform.

Initially, the parties to a custody dispute will be ordered to attend mediation through the court’s Family Court Services division. In all cases, the mediator will attempt to help the parties resolve their differences and, if an agreement can be reached, a written agreement is prepared by the mediator, signed by the parties, signed by a judge, and filed. The matter is resolved as if an agreement had been reached prior to mediation. If an agreement cannot be reached in mediation, the courts follow one or two procedures. In some courts, the mediation is considered confidential and, if no agreement is reached, the communications made within the mediation are never revealed. The mediator’s role ends when the mediation ends. In other courts, if the parties cannot reach an agreement, the mediator sends a report to the judge describing the parties’ respective positions and conveying the mediator’s recommendation as to a custody arrangement. Because of the importance of this distinction, it is essential that a party determine, prior to the mediation, whether the mediation will be confidential or whether the mediator will be disclosing communications and making recommendations to the judge. The answer may bear heavily on the presentation a party wishes to make during mediation.

If the parties cannot reach an agreement in mediation, the issue is decided by a judge. As described above, sometimes the judge has a recommendation from a mediator upon which to rely in formulating a decision. The judge usually follows the recommendation, with or without some modification, but is not obligated to do so. The judge will also consider the testimony of the parties, non-party witnesses, as well as any other evidence the court deems relevant.

The judge can also appoint a private custody evaluator to conduct an investigation of the parties’ respective circumstances and make a recommendation to the court. A private custody evaluation can be very expensive, typically costing between $5,000 and $15,000. The parties bear this cost, either equally or as otherwise ordered by the judge who takes into account the parties’ respective financial circumstances as well as the reasons for the evaluation in making this allocation. While expensive, a private custody evaluation provides the court – and the parties – with valuable information and opinions. The evaluation ordinarily includes interviews with both parents, other family members, new spouses and significant others, therapists, doctors, teachers, close friends and any other collateral contact the evaluator deems to have relevant information. The evaluator can also interview the children and give weight to the children’s preferences commensurate with children’s age and level of maturity. The evaluation can also include home visits which may be scheduled or by surprise, psychiatric testing, and drug and alcohol testing and assessments. In short, the evaluator usually has the discretion to obtain any relevant information from any source in order to assist him or her in formulating an opinion.

Depending on the anticipate length of the process and the needs of the parties, the court can make a temporary custody order that will remain in effect until a permanent order is rendered. For example, a private custody evaluation can often take several months to complete. In the interim, the parties may require a court order setting forth a temporary schedule in order to avoid conflict.