The family court process can be emotional and confusing, and the results, permanent and life-altering. It is important that you understand your rights as a parent so that you can make decisions that best serve you and your family.
Contrary to popular belief, the term “custody," also sometimes called ‘"legal custody," has little or nothing to do with where the child lives, but rather refers to the right of a parent to make major decisions regarding the welfare of a child. Major welfare-related decisions are things such as where the child attends school, what church the child attends, and whether or not the child needs braces or surgery.
When parents have joint custody, it means that both have an equal say in making major welfare-related decisions concerning the child. The benefit of joint custody is that it allows both parents to actively participate in making such decisions. The downside of joint custody is that when the parents disagree, it often means that they must return to court and ask a judge to rule on the subject of the disagreement. For this reason, some judges will award joint custody, but order that one parent has final say in certain circumstances if there is a disagreement.
With sole custody, one parent has the exclusive right to make major welfare-related decisions. Sole custody is typically ordered when the court finds that one parent is not fit, or not able, to make reasonable decisions in the best interests of the child. Often, when a judge awards sole custody to one parent, the order will require that the parent with sole custody attempt to consult the other parent before making a major welfare-related decision.
Most court orders concerning custody will also have an order regarding “primary residence." Primary residence is also sometimes called “physical custody." Primary residence refers to the home of the parent with whom the child primarily resides. This is almost always the residence where the child spends the most overnights and the residence that is used for the purpose of school enrollment. The parent who has primary residence is often referred to as the “custodial parent," while the parent who does not have primary residence is often referred to as the “non-custodial parent."
Visitation is entirely different from custody in that, a parent may not necessarily have custody of a child, but nonetheless be entitled to visitation with the child. Visitation is the time that the non-custodial parent spends with the child, and, except in extreme circumstances, all non-custodial parents have the right to visitation time with their child. Rather, the issue usually becomes where, when and for how long that visitation should be.
A typical visitation order, where there are no unusual or concerning issues, will be every other weekend and two or three nights during the week for a couple of hours around dinner time. Visitation orders will also usually contain language concerning where and how the child is picked-up and dropped off for visitation. When necessary, the court may also order that the visitation take place at a specific place or that it be supervised by a family member or third party.
It is important to remember that, except in cases where a parent’s rights have been legally terminated, all orders concerning custody and visitation are always modifiable. That is, a parent can, at any time, request of the court that the custody or visitation orders be modified. Whether or not a judge will modify a custody or visitation order will depend on whether 1) there has been a significant change in circumstances since the last custody or visitation order; and 2) what is in the best interests of the child.