As parents, the well-being of our children is a top priority, especially in situations like divorce or for unmarried parents. Understanding the nuances of custody and parenting time—often referred to as visitation—is crucial. This guide will delve into the essentials of these topics.
Key Concepts: Custody vs. Parenting Time
Although they may sometimes be mentioned together, custody and parenting time are distinct concepts:
- Custody: This pertains to the legal and practical responsibility of a child. It encompasses decision-making rights and the child’s primary residence.
- Parenting Time (or Visitation): This involves the scheduled time a parent spends with
their child. It becomes especially relevant when one parent doesn’t have physical
custody of the child.
Breaking Down Custody: Legal and Physical
Custody, when examined closely, splits into two categories:
- Legal Custody: This focuses on the authority to make significant life decisions for the child—education, health care, religious choices, and more. Typically, joint legal custody is the norm in many states, implying both parents share these decision-making rights. However, in situations where one parent is deemed unfit (due to reasons like domestic violence), the other parent may be awarded sole legal custody.
- Physical Custody: Refers to where the child primarily lives. Equal parenting schedules result in joint physical custody. However, if a child predominantly stays with one parent, that parent might be granted sole physical custody.
The Evolution of Physical Custody and Child Support
Historically, the label of “physical custody” was pivotal in certain states since the parent with this custody would receive child support. However, this paradigm has shifted. Currently, 40 states adopt the “income shares” approach. Here, child support amounts are based on the actual number of nights (or equivalent measures) the child spends with each parent. This has rendered the traditional ‘physical custody’ label less significant.
In conclusion, while navigating through issues of custody and parenting time, considering the guidance of family law attorneys can be invaluable. Remember to always prioritize the child’s best interests in these discussions.
Understanding Custody Determinations and Establishing Paternity
1. Custody Determinations: Custody decisions can differ based on whether the parents are
divorcing or were never married:
- Divorce Cases: During a divorce, custody decisions are often guided by the “best interest” of the child as outlined by the law. Parents can opt to agree upon a custody arrangement with the aid of legal representatives or mediation services. If an agreement isn’t reached, the decision falls to the divorce court judge, typically in alignment with the
state’s guidelines. - Unmarried Parents: For parents who’ve never married, many states default to giving the mother both legal and physical custody. However, the father can initiate the process to establish paternity, custody, or parenting rights. The criteria for making the determination remains the child’s “best interest,” as with divorcing parents. This can be settled amicably between parents or, if necessary, by a family court judge.
2. Establishing Paternity:
The legal processes concerning custody and visitation predominantly involve a child’s biological
parents. For unmarried fathers, proving they are the child’s biological parent might be
necessary. Here’s how paternity can be established:
- Voluntary Acknowledgment: All states, as mandated by federal regulations, provide unmarried parents the choice to voluntarily affirm paternity. This is typically done through signing a document, often referred to as a Recognition or Declaration of Parentage. However, signing this document doesn’t automatically settle custody and parenting time. This necessitates either mutual agreement between parents or a legal proceeding. While many parents establish paternity at the hospital following the child’s birth, it’s not mandatory to do so. Different states have distinct requirements, so parents wishing to voluntarily confirm paternity should familiarize themselves with their state’s specific regulations.
- Paternity Lawsuits: If there’s a dispute, either parent has the right to file a lawsuit to establish paternity. These legal actions are commonly initiated when one parent seeks child support or visitation rights from the other. The court can employ various methods to ascertain paternity, such as DNA tests, examining the birth certificate, or evaluating circumstantial evidence. An example of circumstantial evidence might be if the purported father behaves in a manner consistent with being the child’s parent.
Understanding Visitation and Parenting Time
Visitation, commonly referred to as parenting time, outlines a schedule for children to split their time between two separate households. While this arrangement helps in identifying the physical custody status, it’s essential to note that the two are distinct. For instance, a mother might hold sole physical custody, yet both parents share equal parenting time. Conversely, both parents could share joint legal and physical custody, but the parenting time schedule allows one parent just one night a week and alternating weekends. It’s not obligatory for custody and parenting time setups to align.
In cases where parents don’t have shared physical custody, the non-custodial parent is typically allotted visitation or parenting time. This schedule can either be agreed upon mutually or set by the court, drawing from legal standards and prioritizing the children’s welfare. A court order formalizes this arrangement.
Defining a Parenting Plan
A parenting plan is distinct from custody agreements or parenting time schedules. In essence, a parenting plan avoids the traditional labels of legal or physical custody. Instead, it provides a detailed framework for decision-making concerning the child. These comprehensive documents, often spanning more than 20 pages, might stipulate shared responsibilities like joint decisions on the child’s sports participation or religious upbringing. The main objective is to sidestep contentious custody labels, focusing instead on a harmonious, detailed approach to co-parenting.
Enforcement of Parenting Plans
Various professionals, from attorneys to child specialists, can aid in crafting parenting plans. Regardless of who parents collaborate with, it’s vital to submit the final plan to the court. This process ensures the plan’s formal recognition, enabling its enforcement.
Relocating With a Parenting Plan
Certain states include a provision in parenting plans to address relocations. This clause typically specifies predetermined custody labels, ensuring continued enforceability if either parent moves to another state that might not recognize the initial parenting plan. This foresight ensures that, even after an interstate move, the stipulated arrangements remain valid and enforceable.
Legal Assistance for Child Custody
Child custody and visitation topics are intricate and differ based on state legislation. Engaging a lawyer will not only assist you in comprehending the nuances of the law but will also be instrumental in negotiating custody arrangements that prioritize the child’s well-being.
A proficient lawyer will foresee potential complications in your custody case and provide strategic advice on addressing them. Additionally, your lawyer will manage crucial timelines and ensure that all necessary documentation is correctly filed with the relevant courts and agencies, ensuring a smoother process for you.
Key Questions to Discuss with Your Attorney:
1. What’s the procedure to obtain custody of a child?
- Custody can be categorized into legal and physical. Both types can be either jointly shared or exclusively granted to one parent. The court determines custody based on evaluating what’s most beneficial for the child, considering the parents’ circumstances. This determination often occurs during legal separation or divorce proceedings.
2. If we mutually agree on a custody and visitation plan, does it still require court approval?
- Absolutely. For a custody or visitation plan to be legally binding, it must be formalized in a court order and endorsed by a judge.
3. Can the court’s initial custody decision be altered?
- While it’s uncommon for courts to revise a custody order when the arrangement is evidently beneficial for the child, changes in circumstances that negatively affect the child may prompt the court to reconsider its decision. Typically, such revisions require substantial evidence, suggesting the child is at risk in the current setup, leading to a thorough evidentiary hearing or trial.
4. Is it lawful for a parent to refuse visitation?
- It’s imperative to understand that a valid visitation or parenting order cannot be unilaterally violated without potential legal repercussions. If one parent unjustly denies the other their designated visitation, the affected parent can seek court intervention for enforcement. Notable exceptions exist, such as if the child’s safety is compromised, warranting emergency court action.