When parents divorce, the court usually must issue an order dividing custody and crafting a visitation schedule that is in the best interests of the divorcing couple's children. While only courts can issue these orders, parents can create their own custody and visitation agreements, through mediation or by themselves, and ask for court approval. If parents cannot agree, the court creates a custody and visitation structure based on state guidelines and the facts of the case.
Mediation and Agreements
Since courts typically defer to the parents' proposed custody and visitation arrangements, parents may benefit from making an effort to reach agreement before asking the judge to create a custody and visitation plan. If parents cannot reach agreement on their own, a mediator may be able to help. Courts sometimes refer parents to mediators to try working out their disputes, but parents can also seek the services of a mediator without the court's encouragement. Mediators do not issue a decision for the parents. Instead, they help parents have a structured conversation designed to get to an agreeable plan that works for both sides. Generally, parents who reach agreement end up with a more workable, custom-designed arrangement than one issued by the court.
Legal and Physical Custody
Courts must determine how to divide both legal and physical custody. Legal custody is the right to make important decisions on behalf of the child, such as where he goes to school and what medical treatment he receives. Physical custody refers to the amount of time the child spends with each parent. Courts can award sole legal or physical custody, meaning only one parent has the right to that custody, but courts can also award shared legal or physical custody, meaning the parents split decision-making or time with their child, or both. Courts can award joint physical or legal custody in a 50-50 split, but courts may avoid this type of arrangement since it can be difficult for parents to get along enough to split a child's decisions or time equally.
Standard Custody and Visitation
Many states and courts use a standard visitation order, sometimes called a standard possession order, when a judge awards shared physical custody. The standard order is meant to provide a consistent arrangement that judges and lawyers know how to interpret. For example, Texas' standard order allows parents or courts to choose from a few pickup and drop-off options, but gives noncustodial parents the first, third and fifth weekend of each month along with one weeknight and some vacation and holiday time.
Alternative Visitation Schedules
Standard schedules don't work for every family, so courts allow parents to design an alternative visitation schedules when the standard schedule is inappropriate. For example, a standard schedule that awards mostly weekend time to the noncustodial parent may not work well if the noncustodial parent works weekends. Courts award custody and visitation schedules that are in the best interests of the children involved, so courts are free to design alternative schedules to fit each child's best interests.