Child Custody Cases During a Divorce

By Victoria McGrath

Parents seek child custody orders through the court during divorce proceedings. Courts consider the custody agreement or parenting plan proposal submitted collectively by both parents. The court approves child custody orders that are in the best interest of the child. Parents can request a temporary custody order after they file for divorce and before the divorce proceedings begin. The court can issue temporary child custody orders to take effect prior to the divorce proceedings; then issue the permanent child custody orders as part of the final divorce decree. Even permanent child custody orders can be modified by the court during a future hearing, based on changed circumstances.

Proposed Parenting Plans

Parents often present a parenting plan to the court to resolve child custody issues during a divorce and courts routinely issue custody orders based on an approved parenting plan or custody agreement. A comprehensive parenting plan includes child custody arrangements, visitation schedules and special holiday arrangements. The parenting plan might also include child support, established in accordance with a state's child support guidelines. Individual states use different formulas to calculate the amount of child support necessary to raise a child; parents may be required to make medical and dental contributions, as well.

Legal Custody and Physical Custody

The parenting plan must address legal custody and physical custody of the child. Parents can request shared legal custody and shared physical custody. Under shared or joint legal custody, both parents make legal decisions concerning the health and welfare of the child, including religious instruction, educational training and medical treatment. With shared or joint physical custody, both parents provide a home for and meet the basic necessities of the child, such as clothing, food, transportation, child care and extracurricular activities. The court decides whether to award joint legal custody, joint physical custody, sole legal custody or sole physical custody over the child.

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Best Interest of the Child

The court must weigh the best interests of each child before it awards custody. Courts carry various presumptions as to the best interests of the child and these presumptions vary from state to state. For example, some courts start with the presumption that joint custody benefits the child; whereas, other courts avoid that presumption. Courts consider various factors; common ones include the child's age, bond with each parent, home stability and schedule consistency.

Regular Contact and Visitation

If a court awards one parent sole physical custody of a child, that parent becomes the child's custodial parent and the other parent becomes the noncustodial parent. A custodial parent has physical custody of the child a majority of the time, while a non-custodial parent maintains regular contact and scheduled visitation. This type of arrangement may be in the child's best interest, often to support a consistent schedule on school days. In extreme cases, a court can require supervised visitation with the noncustodial parent.

Temporary Custody and Permanent Custody

Courts issue temporary custody orders and permanent custody orders. Once parents file for divorce or separation, they can request a temporary custody hearing and ask the court to approve a parenting plan that will last until the divorce is finalized and a permanent plan takes its place. In an uncontested divorce, parents may work well together and present a proposed parenting plan to the court. In a contested divorce, where parents fail to agree on a parenting plan, a court often appoints a family law mediator to help resolve the major conflicts. Some courts require court mediation in divorce cases where child custody at issue.

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What Are Parental Rights in a Divorce?


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