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 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:
The wishes of the
child's parent or parents as to custody;
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;
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);
The intimacy of the
relationship between each parent and the child;
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
The child's adjustment
to home, school, and community;
The length of time the
child has lived in a stable, satisfactory environment and the
desirability of maintaining continuity;
The permanence, as a
family unit, of the existing or proposed custodial home;
The mental and
physical health of all individuals involved;
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;
The child's cultural
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
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
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
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