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Who receives custody of the children in a divorce

December 31, 2016 Blog

One of the most contentious elements of many divorce cases involves the issues surrounding the custody, parenting time or visitation, and support for minor children. There are a number of factors that come into play when it comes to determining who will have custody of children in a divorce case.

Judicial Standard for Determining Custody

All U.S. states have their own set of laws when it comes to divorce and child custody. With that noted, the laws on the books in each state are similar to one another.

All states in the United States utilize what generally can be classified as the best interests of the child standard when it comes to child custody and parenting time or visitation decisions. Child custody decisions are to be made based on a consideration of what is in the best interests of a child.

Courts do not utilize a template when it comes to determining child custody. The facts of each individual case have a direct bearing on how custody will be determined. The court considers a number of factors when it comes to making a child custody determination.

One of the key factors considered by courts in making a custody determination is which parent historically has provided primary care for a child. Another factor is a consideration of the physical, emotional, and psychological health of the parents as well as of the child.

The court will attempt to determine which parent is more likely to foster a healthy relationship with between the child and the other spouse. In some instances, the preference of the child can come into play as well.

Types of Custody

Courts are called upon to make a determination regarding to types of custody. These are legal and physical custody.

Legal custody pertains to the power of a designated parent to make major life decisions for a child. Major life decisions include those relating to healthcare, religion, and education. In an ideal world, both parents share legal custody in some manner. Both parents share in the process of making major life decisions for a child.

Physical custody involves where a child is going to live. If a child resides mostly with one parent, that parent is the primary residential custodian.

Custody Settlement Agreement

Courts tend to favor parents making their own decisions regarding issues like custody and visitation or parenting time. If the parents cannot reach an agreement, courts can schedule a custody hearing or even refer a case to mediation.

Custody and parenting time mediation is becoming more commonplace in this day and age. In fact, in some locales, if parents cannot reach a decision on custody on their own, they may be required to participate in mediation before a custody hearing will be scheduled in their case.

The mediation process involves a trained mediator who assists a couple if trying to make decisions regarding child custody and parenting time. A mediator does not make decisions for the parents. Rather, a mediator is a facilitator that assists in the process of parents working together to obtain a solution to issues associated with custody and parenting time.

Parenting Time or Visitation

A noncustodial parent is entitled to appropriate parenting time or visitation. A majority of jurisdictions have moved to the concept of parenting time over visitation. The theory is that a noncustodial parent should not be relegated to being a visitor in the life or his or her child.

Parenting time is decided as part of the process of resolving custody issues in a divorce or paternity case. Ideally, a noncustodial parent receives recurring and regular parenting time. The parenting time needs to be sufficient to ensure that a noncustodial parent is able to develop and maintain a healthy and meaningful relationship with a child.



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