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Child Custody



When parties to a divorce have children, they must work out a parenting plan outlining who has custody or visitation of the children and when. If the parents cannot agree to a custody arrangement, then either parent may petition the court for custody. Parents must petition the court which is overseeing their divorce, or if they are unmarried, the family or juvenile court in the county and state where the children reside.

Types of Custody and Visitation

Once a parent has petitioned for custody, the court will award either joint custody, which gives custody to both parents, or sole custody, which gives the primary care of the children or decision-making to just one parent, the "custodial parent."

There are two types of custody: physical and legal. Physical custody is the actual physical care of the child, including day to day supervision and habitation. Legal custody involves decision-making rights, such as regarding the child's education, health, and welfare.

When one parent is given primary custody, the other parent (non-custodial) usually gets visitation rights so that they still get time with their children. In most states, joint custody is preferred unless it would be detrimental to the child.

Custody Arrangements and Exchanges

Parents may work out any number of arrangements for both custody and visitation, such as having their children alternating weeks, weekends, split weeks, summers, split holidays, or holidays alternating by odd and even years.

Parents may also arrange a custody or visitation exchange, which involves the time, place, and manner in which the parents give their children over to each other. This exchange can be before or after school, on weekends, at one parent's house, at a daycare facility, or any number of other times and places. In cases where there is animosity between the parents or previous domestic violence, the court can consider an exchange plan wherein neither parent sees the other.

Modifications and "Moveaways"

Once a parenting plan is approved and issued as an order by the court, it cannot be changed unless a party requests a modification and supports their motion with evidence of material changed circumstances. Even parents who wish to move to another state or county must petition the court to reevaluate custody and visitation before they can take their children with them.

Child Custody & Third Party Rights

In some states, the courts may also consider the interests of third parties, such as siblings or grandparents, in having custody or visitation of a child. If the child has been abandoned by its parents, another adult may petition the court for custody. If siblings, grandparents or other interest parties desire visitation, they must also petition the court, which may award visitation rights if the court deems it to be in the child's best interests.

Statutory requirements governing child custody issues vary from state to state and county to county; a child custody attorney with experience in your area can advise you on the particular rules at issue your case.

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