Under the common statutory provision, at the time of divorce if the spouses have children together while married, the parents have joint guardianship over that child and the rights are equal for both parents and have equal right for the custody of the child when they separate.
The court strives to a decision in which it concerns about “the best interests of the child” when determining about the home in which to place the child. Before making the decision made of “the best interests of the child”, the wishes of the child’s parents, the wishes of the child, and the child’s relationship with each of the parents, siblings, other persons who may substantially impact the child’s best interests, the child’s comfort in his home, school, and community, and the mental and physical health of the involved individuals are took into consideration.
The parent with custody of the child solely controls the decisions regarding the child’s education, religious upbringing, and health care.
Courts have the option of choosing one of several types of Child custody.
To understand better about your child custody and visitation options, you’ll need to become familiar with the terminology used by legal experts. In particular, it’s important to understand the difference between Legal custody and Physical custody.
– Legal Custody
Legal custody gives the parent the legal authority to make major decisions on behalf of the child. Legal custody options include:
- Sole Legal Custody: The sole legal custody granted by the court to a parent gives him/her the legal authority to make major decisions on behalf of the child. These include decisions regarding education, religion, and health care.
- Joint Legal Custody: In Joint legal custody it gives the parent’s rights or the legal authority to make major decisions for the child and it should also be noted that parents can potentially share “joint legal custody” without having “joint physical custody.”
– Physical Custody
Physical custody refers where the children live the majority of the time. This is sometimes referred to as “residential custody.” Types of physical custody include:
- Sole Physical Custody: In this custody the child physically resides at one location with a parent and in most cases, the non-custodial parent is granted generous visitation rights, including sleepovers.
- Joint Physical Custody: It is also called “Shared Custody,” “Shared Parenting,” or “Dual Residence.” In this the children live with one parent for a week or for a part of the year, and live with the other parent during the remaining time. The division of time spent at each location is approximately equal.
- Bird’s Nest Custody: In this is the children live in one location, and the parents rotate in and out of the children’s home on a regular schedule. For example, mom may reside at the children’s home from Monday evening till Thursday morning, and Dad may reside there from Thursday evening till Monday morning.
Visitation Rights
When a court gives exclusive child custody to one parent, the non-custodial parent maintains the right to see and visit the child. If the court’s custody decree fails to mention visitation rights, the law implies the parent’s right to visitation. Even if though a strong presumption in favor of visitation rights exists, courts may impose restrictions on visitation by non-custodial parents.
If custodial parent convinces the court that visitation rights would be injurious to the child’s best interests, then the court possesses the authority to deny visitation rights. The best interest of the child analysis, does not give dispositive weight to the child’s stated desires because parents inheritably possess the right to attempt to repair the parent-child relationship. Cases in which courts deny visitation rights often include non-custodial parents who had physically or emotionally abused the child in the past or non-custodial parents severely suffering from a mental illness that would emotionally devastate the child. Noncustodial parents who are incarcerated or who have a prison record are not categorically denied visitation rights.
If a parent refuses to obey the court’s visitation or custody decree, the court can order the parent in indirect contempt of court.
Types of visitation include:
– Unsupervised Visitation: This is the most common type of visitation in which the non-custodial parent with unsupervised visitation are generally allowed to take their children to their own homes or may enjoy an outing child with their children during their scheduled visitation. Sometimes limitations are be placed on unsupervised visitation; for example, a non-custodial parent may be asked to visit his infant child at the mother’s home until the child is accustomed to taking a bottle.
– Supervised visitation: Supervised visitation means that another responsible adult must be present for the duration of the visit. The courts may allow the non-custodial parent to select an individual to serve as the supervisor–such as a grandparent, depending on the circumstances. In other cases, the parent and child must meet at specified location so that an appointed social worker or court-appointed designee can supervise the visit.
– Virtual visitation: Virtual visitation basically means communication takes place over the internet between the child and non-custodial parent and may include video chatting, instant messaging, and email.
