Child custody is the determination that parents make, or a court if the parents can’t agree, regarding the following: 1) where the child(ren) will reside (which parent the child(ren) live(s) with); 2) the access schedule with the other parent (formerly called visitation); and 3) which parent makes decisions regarding the child(ren).
There are two types of custody—1) physical custody, also known as residential custody (physical custody determines the time that each parent spends with the child[ren]), and 2) legal custody, also known as legal decision making (legal custody determines how major decisions regarding the child[ren] will be made). Major decisions pertain to the decisions regarding the child(ren)’s religion, education, health (medical and mental health), and other matters of major significance concerning the child(ren)’s life/lives and welfare.
There are two types of physical custody—sole physical custody and joint physical custody (also known as shared physical custody). When discussing physical custody, the discussion revolves around the number of overnights that a child/children spend(s) with each parent. There is no specific number of overnights that distinguishes sole physical custody from joint physical custody. However, for purposes of calculating child support, anything less than 92 overnights per year by the “non-custodial” parent constitutes sole physical custody by the “custodial” parent. Anything more than 92 overnights per year by the non-custodial parent constitutes shared physical custody for purposes of calculating child support. When one parent has sole physical custody, the other parent will have access or visitation with the child(ren).
There are two types of legal custody—sole legal custody and joint legal custody (also known as shared legal custody). In a sole legal custody situation, one parent makes all of the decisions for the child(ren). There is a debate in the legal community about whether or not the parent with sole legal custody has to discuss the decision to be made with the other parent before making the decision. The better view is that, even in a sole legal custody situation, the parent with sole legal custody should discuss the decision to be made with the other parent before the decision is made. Even when there is sole legal custody, the non-custodial parent is still permitted to make the routine day-to-day decisions when the child(ren) is/are in his or her care. For example, the non-custodial parent decides the foods that a child(ren) eat(s) (subject to any documented dietary restrictions from the pediatrician) or what activities the child(ren) do(es) while in the non-custodial parent’s care.
In a joint legal custody situation, both parents make all of the major decisions for the child(ren). That means that both parents must participate in a discussion before making any decision and both parents must agree on the decision. There is a variation of joint legal custody where both parents must discuss the decision to be made; however, if the parents are unable to agree, one parent may have “tie-breaking authority.” In the event of a dispute, the parent with tie-breaking authority makes the decision. Tie-breaking authority can also be broken down by issue. For example, a parent with tie-breaking authority regarding education would be able to select which school a child(ren) should attend.
If parents are not able to decide legal or physical custody between themselves, then a court will decide which custody arrangement is in the best interest of the child(ren). It is possible for the parents to agree to one type of custody and submit the decision for the other type of custody to the court. For example, if the parents agree to joint legal custody, but they are not in agreement on how much time the child(ren) should spend with each parent. There is no preference for mothers over fathers or vice versa. From a practical perspective, one of the most important considerations is each child’s relationship with each parent and the role that the parent has played in each child’s life.
In deciding physical custody, a court considers the following factors: 1) Fitness of the parents; 2) Character and reputation of the parties; 3) Desire of the parents and any agreements between them; 4) Potential for maintaining natural family relationships; 5) The child(ren)’s preference, if the child(ren) is/are of sufficient age and capacity to form a rational judgment; 6) Material opportunities affecting the future life of the child(ren); 7) Age, health, and sex of the child(ren); 8) Residences of the parents and the opportunity for visitation/access; 9) Length of the parents’ separation, including the length of the separation between the child(ren) and a parent; and 10) Any prior voluntary abandonment or surrender of custody of the child(ren).
In deciding whether to award joint legal or physical custody, a court considers the following additional factors: 1) Capacity of the parents to communicate and to reach shared decisions affecting the child(ren)’s welfare; 2) Willingness of parents to share custody; 3) Fitness of Parents; 4) Relationship established between the child(ren) and each parent; 5) Preference of the child(ren); 6) Potential disruption of child(res)’s social and school life/lives; 7) Geographic proximity of parental homes; 8) Demands of parental employment; 9) Age and number of child(ren); 10) Sincerity of parents’ request; 11) Financial status of the parents; 12) Impact on assistance; 13) Benefit to parents; and 14) Any other factor the court considers relevant.
In making a custody decision, a court frequently may order the involvement of one or more professionals. For example, many of the circuit courts will appoint a custody evaluator, who are usually social workers, to conduct an investigation and then make a recommendation to the court. Alternately, one or both parties may employ a private individual, such as a psychologist, to perform a private custody evaluation. The benefit of having a psychologist perform a custody evaluation is that a psychologist may administer psychological testing to the parties or the child(ren), if needed. The drawback to a private custody evaluation is the cost of the evaluation. For more information regarding custody evaluations, See our Blog post “What is a Custody Evaluation?”
The court may also appoint an attorney to represent the child(ren). If a child(ren) has/have a therapist, an attorney must be appointed to determine whether or not to waive the child(ren)’s mental health privilege with the therapist. Alternatively, the court may appoint a Best Interest Attorney for the child(ren). The Best Interest Attorney’s role is to advocate for whatever he or she thinks is in the best interest of the child(ren). The court may also appoint a Child’s Advocate Attorney. The difference between a Best Interest Attorney and a Child’s Advocate Attorney is that a Child’s Advocate Attorney advocates for the child’s wishes and desires, as long as the child has sufficient judgment, and not what the attorney thinks is in the child’s best interest. For more information regarding Best Interest Attorney, See our Blog post “What is a Best Interest Attorney?”
Custody cases are extremely complicated. They can result in decisions that have a lifetime effect on a child(ren). As a result, a parent should carefully choose the lawyer who will represent him or her in a custody case. The lawyers of Meiselman Helfant and Wills have a combined experience of over 60 years representing families in custody disputes. In addition to representing mothers or fathers, we are frequently appointed to represent the child(ren) as either a Best Interest Attorney or Child’s Privilege Attorney.
