In the United States, both parents usually retain the right to spend time with their children (physical custody) and make decisions regarding their children (legal custody) after separation or divorce.
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While the rules governing child custody (like other family law issues) vary significantly from state to state, most state laws provide for custody to be ultimately decided by a judge based on the best interests of the child. Most state court judges follow the agreements of parents regarding custody and visitation so long as they are not obviously unreasonable.
In separations, divorces, and other situations where custody is an issue, the first step is often for the parents to sit down and attempt to reach such an agreement. Courts generally encourage parents to negotiate to reach a mutually acceptable agreement before the court will hear their custody dispute, and may refer a dispute to mediation if it appears that the parents cannot agree on their own. Since the final alternative to an agreement is to go to court, it is important for parents to know the typical views of judges before they go to negotiate.
What are the Best Interests of the Child?
This is often a very difficult question for judges to grapple with, but there are a few general patterns and viewpoints to be aware of.
First, judges tend to insist that less mature children (e.g. children of elementary school age) spend time with both parents until they are mature enough to make a decision as to where they prefer to live. In contrast, if a high school age child expresses a preference to live with one parent, a judge will usually respect that preference.
Judges are generally very reluctant to exclude one parent from having a relationship with a child, even if there are questions about that parent’s ability or quality. Even in cases of abuse, a parent will typically be given the right to supervised visitation, which may be in the presence of a professional visitation provider or another third party. Judges also tend to prefer family unity, such as by keeping siblings together, when possible.
At the same time, judges tend to be biased toward the status quo. If a child has been in a certain location or with a certain parent for an extended period of time without any problems, the judge will often be reluctant to change that situation even if the other parent presents an argument to change it.
Physical Custody (Parenting Time)
If the parents are very cooperative, they may simply agree to work out a schedule by agreement going forward. However, in most cases, there is a need for a prescribed schedule to minimize the risk of a dispute.
The first question is typically who will care for the children on school nights (nights before school days). In many cases, this is one parent who has primary physical custody. However, the parents may agree to divide these nights between them. This is usually only practical if the parents live in the same area, since otherwise commuting to school will become difficult. One common pattern for a “50/50” joint custody arrangement is the “alternating 3/2/2” pattern, where the child spends Sunday to Tuesday night with parent A, Wednesday to Thursday night with parent B, Friday and Saturday night with parent A, Sunday to Tuesday night with parent B, and so on.
Weekends are often divided on an alternating basis, so that the parents take turns keeping the child for the entire weekend. Holiday periods may be allocated similarly, or may simply be divided in half (for example, one parent spends Christmas Eve with the child and the other parent spends Christmas Day with the child).
There is often a designated exchange point to pick up and drop off the child, which may be a parent’s home or a neutral location between the parents’ homes.
In some cases, one or both parents may pose an obvious risk of taking the child without permission due to their past history or their ties to another state or country. In such cases, a custody order may impose additional restrictions to prevent child abduction, such as requiring permission for travel outside the state or country, preventing a parent from applying for the child’s passport, requiring the order to be registered in another jurisdiction, or notifying foreign missions of the order.
Legal Custody (Decision Making)
Unless there is a court order to the contrary, either parent generally has the right to make decisions regarding a child. Most courts today generally prefer to award joint legal custody if the parents appear to be capable of cooperating to reach major decisions. Where this appears to be impractical, courts will often award sole legal custody to one parent.
A joint legal custody arrangement after separation or divorce will typically require the parents to discuss and agree to major decisions, such as:
- Which school the child will attend
- Which extracurricular activities the child will be enrolled in
- Whether the child will undergo medical treatment
- Religious activities
- Travel to other states or countries
- Changing the child’s name or using a different name for the child
When the parents have difficulty cooperating to agree on major decisions, courts will often award sole legal custody to one parent. As a middle ground between the two, some courts may award joint legal custody with one parent to have “tiebreaker” authority if the parents cannot agree on certain matters, ensuring that these matters are at least discussed between the parents.
Custody Agreements and Custody Orders
When parents reach an agreement on custody of their children, they will often record the terms in a written and signed custody agreement. The custody agreement may be part of a broader marital settlement agreement that deals with issues of property and support, or it may be a stand-alone document.
In some cases, it is beneficial to have a judge issue a court order based on the parents’ agreement. A person who violates a court order can be found to be in contempt of court, which carries criminal penalties that may include fines and imprisonment. This makes an order more powerful than an agreement. However, modifying an order requires the modification to be submitted to and approved by the court, an additional process that takes time and costs money.
A custody agreement or custody order can also be modified by either party making a request to a court. Judges are often able and willing to modify custody agreements and custody orders if the circumstances have changed such that the terms are no longer in the best interests of the child: for example, if a parent relocates, changes jobs, or has other personal issues that affect their ability to care for the child or follow the terms of the existing agreement or order.