Child Custody

Resolving custody and visitation is the single most important issue by a judge after trial. The overriding concern of the parents must be, and by a judge will be, what is in the child(ren)’s best interests. A parent must never evaluate their case by what is in their own best interests. Any attempt to do so will harm that parent’s case.

In a divorce, “custody” is composed of two separate concepts. They are: physical custody (i.e. where a child spends his/her overnights and legal custody (i.e. the authority to make decisions effecting a child’s welfare). There are 2 times during a litigated case when custody is at issue. There is the temporary (i.e. pendente lite- pron. “pen-den-tay lee-tay”) custody which is often granted relatively soon after a complaint for custody is filed with the court and served on the opposing party. Later in the case a merits (i.e. final) determination will be made by the court establishing custody from that time forward unless or until modified by agreement of the parties or further court order.

Modifications of custody are only made if a party can prove what is known as a “material change in circumstances”. That being said, pendente lite custody can also be modified based upon a similar proof being made to the court. Although pursuing such a modification is not commonly done. Joint legal custody can be held by one parent or by both of them. Parents can agree to be “joint legal custodians” of their child(ren). In the event parties litigate the issue of joint legal custody, courts are often inclined to award joint legal custody. However, that is not something either party can count on. A significant factual issue the parties, and a judge, will consider in deciding if parents should have joint legal custody is whether they have in the past been able to successfully resolve their differences of opinion about issues concerning their child(ren)’s welfare. It is important to note that a parent who was not very involved in their child’s life prior to separation, but who becomes an involved parent after separation, is often considered by a judge to be a contender for sole or joint legal custody. Typically that is because in most cases children require the involvement of both parents for healthy development. In the event a party can show they have become involved, or more involved, in their children’s lives a judge will certainly recognize and consider that change, which may favor such a person in their case for physical and/or legal custody. Obviously the overriding concern is whether the parent who has taken a more active role in their child’s life will continue to do so once custody is determined by agreement or court order.

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