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FAQ: Divorce

Child Custody

What does the court consider when deciding custody?

The courts use the best-interest-of-the-child test that can vary somewhat by jurisdiction. However, most courts consider the fitness of the parents, including each parent's ability to provide adequate food, clothing, shelter, care, education and a positive living environment. The court will also look at the relationship between each parent and the child(ren), keeping in mind that every child is entitled to the love, nurture, advice, and training of both father and mother.

What is sole custody?

Sole or exclusive custody gives legal and custodial rights to one parent. The child lives with the custodial parent, and the custodial parent is given the power to determine the child's upbringing including his or her education, health care and religious training.

What is joint custody?

The most common form of joint custody is joint legal custody with primary physical custody (the child lives with this parent) given to one parent and visitation rights are generally given to the noncustodial parent. Joint or shared legal custody gives both parents decision-making authority over the major decisions affecting the child.

What is split or divided custody?

Split custody designates that children in a family are separated with each living with either parent exclusively. Divided custody means that the kids alternate living with each parent for periods of time. Divided or split custody may give each parent exclusive decision-making authority with respect to the child in his or her care, or the parents might have joint legal custody in which they share responsibility for major life decisions.

What is physical custody?

In almost all circumstances, the primary home of the family is considered community (or marital) property. When determining division of marital assets, the court considers many things. Keeping the home is viewed as tantamount to providing stability when children are involved and the parent awarded primary custody will most often remain in the home.

What is legal custody?

Legal custody refers to parental decision-making authority for the child(ren) regarding education, religion, medical treatment, extracurricular activities, and all other major parenting-related decisions that need to be made for the child(ren).

What is joint legal custody?

Joint legal custody implies that both parents retain all legal rights with respect to their child(ren) and neither parent's rights are superior. Joint legal custody requires an ongoing decision-making process between parents that closely resembles that of an intact nuclear family. Parents must consult with each other regarding the child's health care, education, religious training, extracurricular activities, summer activities, discipline, curfews for school nights and weekends, and age of driving. Neither parent (custodial or noncustodial) has the presumption in his or her favor as to choice of school or church.

Does the court have to decide who gets custody of the child(ren)?

It is generally accepted that parents are in better positions than almost any third parties to know their own family situations (the needs of the children and the parents), and some state laws presume that agreements between parents regarding custody of the children are in their best interests. However, the judge still will make the ultimate decision and will need to approve the agreement to make it legally binding. Additionally, the judge can find the agreement not to be in the child's best interests if, for example, the parents try to bargain away the child's rights.

Does custody affect child support?

Many states have child-support formulas that allow for reductions in the amount of support paid as the amount of time the paying parent spends with the child increases. However, the reduction formulas vary widely among jurisdictions and are decided on the individual circumstances of each situation. For legal advice regarding your situation, or to discuss your child custody questions, contact an experienced divorce and child custody lawyer.

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