Custody and Visitation

In cases where minor children are involved, the first and most important issue that must be addressed is child custody. The determination of custody of children certainly affects the remaining issues of a divorce proceeding, including issues of support (child and spouse), visitation rights, possession of the marital residence, personal property and debt division.

In the past, the children’s mother was generally awarded the sole care, custody and control of the parties’ offspring and the father was provided a somewhat restricted visitation schedule with the children. Today, judges are much more likely to order that the parties retain joint custody of their children with the mother being classified as the “primary residential parent” and the father being awarded quite liberal residential times with the children.

In fact, given the many problems facing families today (two parent careers, drug and alcohol abuse problems), it is not uncommon for the judge to consider the father as the primary residential parent of the parties’ children. A typical visitation schedule for the non-custodial parent would minimally include alternate weekends, a mid-week visit from after school until an hour before the children’s bedtime, alternating holidays and several weeks during the children’s summer vacation from school.

This type of visitation schedule would be adjusted to reflect the circumstances of the parties involved such as the parent’s work schedules, the ages and activities of the children and such other visitation times as agreed to by the parties. The single most important difference between joint custody and sole custody awards is the decision-making process over the major issues affecting the children.

In sole custody awards, the custodial parent is awarded the exclusive decision-making authority over all issues concerning the physical or mental well being of the children. In contrast, a joint custody award allows both parents to have equal input over the decisions affecting the children and, if the parents are unable to agree, then the parties will be required to mediate their differences outside of the court system with a pre-selected mediator. Only when this mediation process fails, will the parties’ dispute spill over into the court system for the judge’s determination on same.

It is important to realize that disputes over custody and/or visitation rights will usually put the parties and their children right in the middle of a bitterly contested and expensive custody battle. When custody litigation occurs, the judge will routinely order the parties to submit to one or more of the following procedures as part of the evaluation process toward the ultimate determination of which parent will be awarded the custody of children:

  • Court ordered formal mediation of custody/visitation disputes
  • The appointment of guardian and attorney for the children
  • Psychiatric evaluations of the parents and children
  • A study of each parent’s home by a court investigator

It is generally best for all individuals concerned if the parents are able to agree upon issues of custody and visitation rather than submitting this extremely emotional issue to a judge for a final determination.