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Overview Cont...

What are the types of custody orders? 

Legal custody can be:

  • Joint, where both parents share the right and responsibility to make important decisions about the health, education and welfare of the children.

  • Sole, where only one parent has the responsibility to make the important decisions about the health, education and welfare of the children.

Some examples of the decisions or choices parents with legal custody make are:

  • school or childcare

  • religious activities or institutions

  • psychiatric, psychological, or other mental health counseling or therapy needs

  • doctor, dentist, orthodontist, or other health professional (except in emergency situations)

  • sports, summer camp, vacation, or extracurricular activities

  • travel

  • where to live

Physical custody can be:

  • Joint, which means that the children live with both parents. 

  • Sole or primary, which means the children live with one parent most of the time and usually visit the other parent. 

Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means both parents have share the responsibility in making important decisions in the children’s lives. But, the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.


What are the types of visitation orders?

  • Visitation:  When the parent who does not have the children more than half of the time has visitation with the children.  Generally, it helps the parents and children to have detailed visitation plans to prevent conflicts and confusion. 

  • Supervised Visitation: When the children's safety and well-being require that visits with the other parent be supervised by you, another adult, or a professional agency.

  • No Visitation: This option is used in situations when visiting with the parent, even with supervision, would be physically or emotionally harmful to the children. In these cases, it is not in the best interest of the child for the parent to have contact with the child.

What does the law consider when deciding custody and visitation?

The law says that judges must give custody according to what is in the best interest of the child. Judges look at the children’s health, safety and wellbeing to decide whether to give custody to one or both parents. Courts also consider any history of abuse by one or both of the parents. 


Courts do not automatically give custody to the mother or the father, no matter what the age or sex of your children. Courts cannot deny your right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different lifestyle, religious belief or sexual orientation.


In a few cases, if giving custody to either parent would harm the children, courts give custody to someone other than the parents because it is in the best interest of the children. Usually, this is called “guardianship,” where someone who is not the parent asks for custody of the children because the parents cannot care for the children. 


What is “the best interest of the child”?
It is what judges must consider to make their decisions about custody and visitation.  To decide what is best for a child, the court will consider:

  • the age of the child,

  • the health of the child,

  • the emotional ties between the parents and the child,

  • the ability of the parents to care for the child,

  • history of family violence and/or substance abuse, and

  • the child’s ties to school, home, and his or her community.

What is the process for getting a custody and visitation court order?

In most cases, parents can make their own agreements for custody and visitation. If you and the other parent agree on custody, the judge will probably approve your agreement and it will become a court order. After the judge signs your agreement, file it with the court clerk.


If you cannot agree, the judge will send you to mediation and a mediator from Family Court Services will help you. If you still cannot agree, you and the other parent will meet with the judge. Generally, the judge will then decide your custody and visitation schedule.


In some cases, the judge may appoint an evaluator to do a custody evaluation and recommend a parenting plan. A parent can also ask for an evaluation, but the request may not be granted. Parents may have to pay for an evaluation.


The judge also may appoint lawyers for children in custody cases. The judge will also decide who will pay for the child’s lawyer’s fees.


Can a custody and visitation order be changed? 

After a judge makes a custody/visitation order, one or both parents may want to change the order. Usually, the judge will approve a new custody and visitation order that both parents agree to.  If the parents can't agree on a change, one parent can ask the court for a change. Usually, that parent will have to ask for a court hearing and prove to the judge that there is a change in circumstances, harm to the children or other good reason to change the order.  Both parents will probably have to meet with a mediator to talk about why you want to change the order.

/Overview Continued 
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