There are two types of custody, "legal" and "physical." Do not confuse them. They mean very different things
What is Legal Custody?
Legal Custody is the right to make decisions related to your minor children. Major decisions include education, health care, and religion. There is a strong presumption under most state laws that "legal custody" should be shared by the parents. An award of joint "legal custody" is not a basis for a downward departure in child support.
What is physical custody?
Physical Custody is what most people think of when the term "custody" is mentioned. It can also be called physical placement or primary physical residence.
Physical custody is the primary physical residence of the child. The presumptions differ from state to state. Some states have a presumption that when parents disagree on who should have primary physical custody, it should be awarded to one parent. In other states the presumption for joint parenting has been adopted. For example, in Wisconsin, there is a presumption that time should be maximized with each parent which is often interpreted as a presumption for joint physical custody.
How is Custody Decided?
In any custody dispute, the Court must decide what is in the "best interests" of the children. The factors may include:
1. The wishes of the child's parents;
2. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
3. The child's primary caretaker (who cooked the meals, took the child to the doctor, bathed the child, attended school functions and extra-curricular activities, helped with homework, provided discipline);
4. The intimacy of the relationship between each parent and the child.
What if there are allegations of abuse?
Allegations of abuse are taken very seriously. Seeking a restraining order as part of a divorce proceeding has become a common occurrence and is sometimes an abused process designed to gain advantage in a custody proceeding or to acquire an early court date to have one party removed from the home. A finding of domestic abuse, whether it involves the minor children or not, may have a dramatic impact on the divorce proceedings. There is a very strong presumption under most state laws that physical custody should not be awarded to a domestic abuser. That means, a person who has been the subject of an Order for Protection (restraining order) or convicted of domestic assault may be unable to acquire physical custody. For this reason, allegations of domestic abuse must be vigorously defended in order to preserve your rights in a custody battle.
What if the allegations of abuse are false?
False allegations of sexual or physical abuse are also taken very seriously. Most states have statutes that allow the court to consider false allegations of abuse in making custody determinations. Moreover, false allegations of sexual or physical abuse to gain advantage in a custody proceeding may also result in criminal charges.
Can my children decide where they will live?
Many people incorrectly believe that the children have an absolute right to choose where they will live. That is not the case. Generally, a child may express a preference when that child has reached a suitable age and maturity level. Even if the child is able to express a preference, most courts do not place much weight on a child's preference before the age of twelve. Even at that age and older, the child's preference is only one factor out of thirteen for determining custody.
Will the Court talk to the Children?
Many parents wish to know if their children can be called as witnesses. Although opinions on this topic may vary, most psychologists agree that placing a child in the role of a witness can be very traumatic and is usually not in their best interests. Children present testimony in only rare cases. W here cases do require the testimony of children, Courts will often require that a Guardian Ad Litem speak with them and represent their interests and statements to the Court. The Court may also speak to the children directly in a less intimidating setting such as the Judge's chambers.
**Author: Maury D. Beaulier is a recognized leader in divorce and family law. He is a sought after speaker and has appeared on National programs on a myriad of family law and father's rights issues. He can be reached from his website at http://www.divorceprofessionals.com