Indisputably the most important and often most vexing issue in family law is that of child custody. If divorcing or separating parents care about nothing else in the terms of their divorce decree, legal separation agreement or what-have-you, it will always be the children every time, hands down.
What is child custody, and how can it be arranged?
Child custody is just a fancy way of saying which parent or guardian gets to have the child or children with them. Sometimes it is also called "visitation" or "parenting time," but those are actually separate issues, which I will get to later in this guide. Meanwhile, "custody" is shorthand for "care, custody and control," which is a legal term of art meaning having legal authority over and responsibility for the welfare of a minor. In family court this breaks down into legal and physical custody. "Legal" custody means the ability to make decisions relating to a child's well-being, such as what doctor(s) they go to, what school they attend, where they go to church, who their friends are, which relatives they can spend time with, that sort of thing. "Physical" custody is just like it sounds: The physical location of the child or, put another way, which parent/guardian the child lives with. These days judges award joint custody--both legal and physical--in the vast majority of cases.
OK, so what does all this mean to me and my kids?
As stated above, joint custody is the most common scenario today for parents who are no longer together but have a child or children in common and can't agree on a sharing arrangement. Sole legal and/or physical custody is far less common, except in extreme cases of disability, neglect or abuse, but termination of parental rights typically comes into play then. Even with a joint custody award, though, a judge will usually designate a primary physical custodian. This may be more for convenience or ease of administration by the courts, schools, medical providers, etc., than necessity for the family, but it is the norm. A 50-50 award is exceedingly rare but even there, the reality is that it is virtually impossible to get an exact 50-50 split of parenting time, especially once a child enters school. Then the situation usually becomes one where mom/dad has the child(ren) on school days/nights and dad/mom on summer breaks and occasional weekends and holidays throughout the year.
What if we can't agree on schools, doctors, churches and the like?
Even though joint custody has become the default or standard in family court, it can create problems for legal decisionmaking where the parents are particularly confrontational or disagreeable with one another and cannot set aside their own interests for the "best interests of the child" (another term of art relating to putting the child's optimal well-being first). This is why sometimes a judge will designate one parent or the other as the primary legal custodian (usually the same parent who is primary physical custodian). What this looks like in practice is that each parent still must consult with the other on all issues of any import for the child, but if they cannot reach a compromise or resolution after reasonable effort and time expended, the primary legal custodian will get the final say. Another condition family judges often add is that parents must seek the services of a mediator--court-sponsored or private--if they cannot agree on what should be done for the child.
Whether you call it "visitation" or, as it increasingly is being known, "parenting time," this concept essentially involves time that the non-custodial or non-primary custodial parent and children can spend together. It varies anywhere from 178 days down to zero during a calendar year, depending on what the court orders. By the way, since this question is so frequently asked: Children don't have any say as to parenting time. Even if they are 17 1/2 years old, unless a judge decides to take their wishes and views into account, they essentially must obey the court and their parents and go on all parenting time visits, whether they want to or not. However, noncustodial parents don't have to exercise all their regularly scheduled parenting time or may not always be able to. But they must give their ex "rights of first refusal"; in other words, notify them as soon as they find out/decide they won't be available to take the kids a certain date/time and give the other parent "first dibs."
There are still so many questions in my mind. What should I do now?
After reading this legal guide (and probably before), you undoubtedly recognize by now that child custody is arguably the most crucial and perhaps the most complicated area of family legal disputes. There is so much more than can be adequately addressed in this legal guide. Therefore, you would do well to consult with an experienced family law attorney who also has considerable experience with divorces involving children as well as non-marital child custody cases.
I don't even know how to begin. Where do I start?
A good place to start is by filling out (maybe just in pencil at first) a proposed parenting plan/agreement form, available through your county superior court. [I have attached an example, from Maricopa County, Arizona.] This will get you thinking about what a shared parenting arrangement might look like, particularly as it relates to weekdays/nights, weekends, holidays and special days like the parents' and children's birthdays. If you and the other parent can even sit down and hammer out a plan together and agree on some if not all of the terms, this will go a long way toward resolving your dispute, be it a divorce or child-custody establishment proceeding. Best of luck to you and your entire family.
This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship.