When parents divorce, it is important to learn about the child custody and visitation options that are available and the legal standards that apply. In many cases, divorcing couples can ultimately agree on custody and visitation issues without the need for a court order. When an agreement cannot be reached, knowledgeable advice and representation from a family law attorney at The Law Offices of G. Wayne Van Bibber & Associates, PLLC in Charleston and Hurricane, West Virginia, can often make the difference. Custody Basics The duty to provide day-to-day care of a child and the right to direct the child’s daily activities is known legally as physical custody. Legal custody means the rights and responsibilities associated with decisions regarding the child’s upbringing. Many options regarding the division of custody rights and responsibilities between divorcing parents exist. More and more, courts are encouraging parents to continue working together to raise their children even after their marriage has ended. Custody arrangements commonly include the following:
- Sole Custody. Sole physical custody occurs when one parent retains the exclusive, primary right to have the child live with him or her. Sole legal custody occurs when one parent has the exclusive right to control the child’s upbringing. The most common type of sole custody is sole physical custody with joint legal custody and a generous visitation schedule for the non-custodial parent. When one parent ends up with the primary responsibility for the couple’s children, the other parent, known as the non-custodial parent, usually has a right to maintain contact with the children through ongoing visitation.
- Joint Custody. In joint custody, parents share responsibility for decision-making, for physical control and custody of the children, or for both.
- Split Custody. Split custody is a less popular resolution where each parent takes custody of different children.
- Shared Parenting. Shared parenting is a relatively new concept in child custody that has been adopted in several states. In shared parenting, children usually spend equal amounts of time with each parent and the parents share legal and physical custody.
- Temporary Hearings. The family court holds a temporary hearing shortly after the initial papers are filed. If custody is contested at this point, the court will issue an order deciding custody that will be in effect until the court enters its final divorce decree.
- Custody and Mandatory Mediation. Most states now require parties in a contested divorce to attempt mediation. Mediation is a form of alternative dispute resolution in which divorcing couples work with a specially trained neutral third party to resolve some or all of their disagreements. Couples who resolve their custody disputes through mediation can include a provision in their final divorce decree making mediation mandatory to resolve future custody and visitation disputes.
- Custody Evaluations. If the parties are unable to reach an agreement regarding custody, most courts will order a custody evaluation prior to trial. The custody evaluation is made by an outside expert on whose assistance the court will rely in ordering a child custody arrangement that is in the best interests of the child.
- Custody Trials. Every state has statutes and procedures for the legal resolution of disputed child custody. Most courts decide contested custody cases based upon a determination of what arrangement is in the best interests of the child. Factors considered in determining custody arrangements include the child’s age, the child’s attachment to the parent who has been the primary caretaker, the physical and mental health of each parent, the existence of domestic violence, and the child’s wishes.