CHILD CUSTODY

Child custody is the most emotional and traumatic part of most divorce cases. Custody arrangements between parents can vary with the most common being as follows:

1. Joint Legal Custody. In a Joint Legal Custody arrangement, both parties must agree and cooperate with each other regarding major issues affecting the minor child or children such as medical decisions, religion and educational decisions.

2. Joint Physical Custody. Joint Physical Custody means just what it says. The minor children will live with one parent part of the time and the other parent part of the time. The parent who has care of the minor child or children at any given time will then be the one who is responsible for making routine decisions regarding the children.

3. Primary Physical Custody. In this arrangement the minor child or children will primarily live with one parent. In most situations, the non-custodial parent will then be allowed Parenting Time with the minor child.

4. Sole Custody. This custody arrangement gives one parent all responsibility for major decisions regarding the minor child/children along with primary physical custody.

It is usually best for the parents to come to a resolution of an acceptable custody determination. Otherwise, the court will have to make the decision and is bound to consider the following factors:

a. The love, affection, and other emotional ties existing between the parties involved and the child;

b. The capacity and disposition of the parties involved to give the child love, affection, and guidance and continuation of the education and raising of the child in its religion or creed, if any;

c. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of the medical care, and other material needs;

d. The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;

e. The permanence, as a family unity, of the existing or proposed custodial home or homes;

f. The moral fitness of the parties involved;

g. The mental and physical health of the parties involved;

h. The home, school, and community record of the child;

i. The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;

j. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent;

k. Any other factor considered by the court to be relevant to a particular child custody dispute.

For a complete review of these factors please see the Child Custody Act of 1970.

When there are custody disputes, the parents must be advised as to joint custody as follows:

1. At the request of either parent, the court shall consider an award of joint custody, and shall state why joint custody may or may not be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:

a. The 11 factors enumerated above.

b. Whether the parties will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.

2. If the parents agree on joint custody the court shall award joint custody unless the court determines on the record, that clear and convincing evidence affecting the welfare of the child dictates otherwise.

3. That if the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.

4. During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.

5. If there is a dispute regarding residence, the court shall state the basis for a residency award on the record in writing.

6. Joint custody shall not eliminate the responsibility for payment of child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of the parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses, even during a period when the child in son residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.

Child custody orders are modifiable. The court will consider the time the child has lived in a stable custodial environment and what is in the best interest of the child. It should be remembered that the child’s preference, though an important factor, is just one factor to be considered in the 11 factors cited above.

Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion with your attorney. Contact the Law Office Of Neil A. Davis, PLC to set up an initial consultation.