Child Custody & Visitation

Family law cases are hard to define, especially in the case of a divorce and child custody. Many people who go through a divorce consider it to be a difficult and painful life transition. A child custody matter naturally stirs up concerns about parental rights and the importance of stability for a child or children.

When mother and father get divorced, or if they were never married and have split up, the court can issue a custody order. This custody order will generally grant joint custody, identify which parent will be the “domiciliary parent,” what the schedule of custody or visitation will be, and set certain general rules.

In some circumstances, a parent may be granted sole custody of a child. Sole custody generally means that the parent with sole custody may make important decisions concerning the minor child without the input of the other parent. Sole custody for one parent does not necessarily mean that the other parent will have no visitation or only limited visitation with the kids, however such limitations and restrictions on visitation are not uncommon when the facts of the case are enough to warrant sole custody. Getting sole custody will typically require much more than showing that the other parent is not perfect and an award of sole custody is not very common.

Most parents get joint custody of their children. Joint custody generally means that the parents are required to keep each other informed of significant events concerning their minor children and to both be involved in making major life decisions for their minor children. Joint custody has nothing to do with the amount of time the children spend with either parent.

Generally, when the parents have joint custody, one of them, and only one of them, will be named the “domiciliary parent.” This is the parent that the child will primarily “live with.” Even if the parents have shared custody on a 50/50 basis, such as one week with mom and then one week with dad, there will typically still be a domiciliary parent named. The domiciliary parent will generally have the final say regarding major life decisions for the kids but is still required to inform the other parent about important events and circumstances concerning the kids and to confer or consult with the other parent in good faith regarding major life decisions for the kids. If, after conferring with the non-domiciliary parent in good faith and being unable to reach an agreement, the domiciliary parent may make the final decision. If the non-domiciliary parent does not accept that choice, he or she can file a motion with the court and attempt to show the court that it should force the domiciliary parent to do something different. Generally, the court will presume that the decision made by the domiciliary parent was in the child’s best interest and it will be up to the non-domiciliary parent to prove otherwise.

As with all custody related matters, the schedule of custody is determined first and foremost by what is in the child’s best interest. All other concerns are secondary, including what is fair, convenient, or desirable to the parents. Ideally, custody should be shared between the parents as equally as possible, provided that is what is in the child’s best interest. Unfortunately, due to work, school, the particular needs of the child, and any number of other circumstances, shared custody on a 50/50 basis is often not feasible nor in the child’s best interest and different arrangements must be made.

Most people are familiar with the “every other weekend” schedule of custody which works fairly well for many people. It gives the kids the stability and routine they may need during the school week and alternates the weekends between the parents. In order to give the non-domiciliary parent and the kids more time together, the courts may grant the non-domiciliary parent a day during the week and an alternating weekly 7/7 schedule during the summer, in addition to shared school holidays. The courts may also grant the non-domiciliary parent an extended weekend such as Thursday afternoon to Monday morning so that the non-domiciliary parent and the kids can have more quality time together. While a variant of the “every other weekend” schedule is fairly common, it is not a mere “cookie cutter” schedule that is imposed on everyone by the courts. Due to the particular facts of each case, some people may have custody schedules that look very different from others.

A joint custody order will typically also include various other rules concerning custody. Many of these rules could be described as rules that shouldn’t even have to be written down, such as rules forbidding the parents from badmouthing the other parent in front of the children, forbidding the parents from having the children refer to a new spouse or boyfriend/girlfriend as “mom” or “dad,” etc. Once these rules are included in the order, they may be enforced by the court should a parent violate them.

When both parents agree on what the custody order should say, a “consent judgment” may be obtained without the necessity of going through a trial. This is an ideal result because no judge or hearing officer would know what is better for a child than that child’s own parents. Only when mom and dad simply cannot agree should they put it in the hands of a stranger to make a decision for them. A consent judgment also has the extra bonus of being far less expensive than a contested hearing would be. Keep in mind also, that a custody order can typically be modified at will by the agreement of both parents. So, for example, just because an order says one parent has a certain weekend does not necessarily mean you are permanently locked into that since you are free to change it however you wish as long as both parents agree.

Even if parents are getting along and exchanging custody on their own without a court order, it is still highly advisable to get one because it is enforceable. An agreement, even a written one, may not be upheld by the court in a dispute later. Just because your child’s other parent is cooperative and reasonable now, doesn’t mean he or she will always be that way. Waiting until there is a problem (such as the other parent preventing you from seeing or speaking to your child) before seeking an enforceable order could mean that the problem continues for weeks or months before the court has an opportunity to resolve it and you cannot turn back the clock on the things you missed during that time.

When one parent violates an order of the court, including a custody order, the other parent may file a “Rule for Contempt.” If, after a hearing, the aggrieved parent proves that the other parent violated the custody order and did so willfully, the court may find that other parent to be in contempt of court. There are a variety of punishments available to the court to punish a parent held in contempt of court for violating a custody order, and those punishments may include requiring the other parent to pay some or all of your attorney’s fees and court costs. If the contempt concerned missing custodial time, the ruling of the court may also include makeup time with the kids or in some circumstances, a temporary reduction or suspension of child support payments.

A rule for contempt is a hearing like any other and you must prove with witnesses and evidence that the other parent willfully violated the orders of the court in order to succeed. The costs of doing so will vary greatly from case to case, but in none of them will the cost be negligible. There is no guarantee that the court will order the other party to reimburse you for all, or even any, of your fees and costs. Accordingly, a rule for contempt should be used when the other parent’s bad behavior is significant. You should consult with an attorney about your particular situation if the other parent may be disobeying the court’s order, especially with an attorney that offers free initial consultations.

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