Custody determinations are often a highly contentious and emotional component of the divorce process, so it is important to know your rights as a parent before going into settlement negotiations or the courtroom. As a general rule, both parents have rights to custody of the children after a divorce. How custody is divided may be up to the parents, but if they can't decide, the court will make a determination based on the best interests of the child.
During divorce proceedings, parents have the right to determine a custody arrangement that best works for their family, instead of having the court decide for them. The vast majority of divorcing spouses come to their own agreement on custody. For the agreement to be enforceable, the parents must file the custody agreement with the court, which the judge will likely approve.
In cases where the parents cannot agree on custody, it will be up to the court to decide. In every state, custody determinations are made based on what is in the best interests of the child. The particular criteria varies depending on state law. Common factors include the relationship the child has with each parent and other siblings, the mental and physical health of the parents and the children, the child's connection to his community, and in some cases, the wishes of the child.
Legal and Physical Custody
Although the terms may differ depending on the laws of your state, courts generally differentiate between legal and physical custody. Legal custody refers to which parent makes important decisions for the child, such as where the child will attend school, or whether the child will undergo a particular medical procedure. Conversely, physical custody refers to where the child lives on a day-to-day basis. Parents may have joint legal custody, meaning the parents share in decision making, or one parent may have sole legal custody, meaning only one parent has the right to make decisions. Similarly, parents may share physical custody, allowing the children to spend time living with each parent, or one parent may have sole physical custody while the other has visitation.
Although one parent may have custody of the child, the noncustodial parent has an automatic right to visitation with his children. The right to visitation will generally be denied only in situations where a child's physical or mental health may be in danger, such as in cases of domestic violence. Because courts are interested in maintaining and repairing parent-child relationships, judges may also grant supervised visitation instead of cutting off contact completely.