There are two types of custody, “legal” and “physical.”  Do not confuse them.  They mean very different things

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.

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.

In any custody dispute, the Court must decide what is in the “best interests” of the children. To do so, the Court is required to look at thirteen factors that have been set out in the state's particular divorce laws. the factors may include:

1. The wishes of the child's parent or parents as to custody;

2. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference most Courts do not consider the child to be of suitable age until the age of twelve or more. The exception to this rule is Tennessee which gives a presumption to a child's desires if the child is over the age of 14;

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;

5. The interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;

6. The child's adjustment to home, school, and community;

7. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

8. The permanence, as a family unit, of the existing or proposed custodial home;

9. The mental and physical health of all individuals involved;

10. The capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;

11. The child's cultural background;

12. The effect on the child of the actions of an abuser that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and

13. The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.

The court generally may not use one factor to the exclusion of all others. Many people, attorneys included, tend to place a significant emphasis on which parent was the primary caretaker. However, this factor is only one of of many and may not be used as a presumption in determining the best interests of the child.

Joint Physical Custody.

Generally, in order for a court to award joint custody, it must find that the parents have the ability to cooperate in rearing the children and have methods and a willingness to use methods for dispute resolution.

Allegations of Abuse.

Allegations of sexual or physical 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. This can be a vexsome issue since Courts regularly elect to err on the side of caution granting restraining orders in cases where the allegations and evidence are very weak.  Do not fall into this trap.  Avoid all conflict if possible!  Assume any thing you say or do is being recorded! Maintain your best behavior!  This can be very difficult in the emotional context of divorce.  However, when you consider that most divorce cases are driven forward by emotional issues rather than legal ones, this becomes an absolute necessity to preserve your rights, facilitate settlement and reduce legal fees.

False Allegations of Abuse.

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.

Preference of Children.

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.

Children as Witnesses.

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