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.

Divorce is never easy, but we can help. Learn More

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.

Divorce is never easy, but we can help. Learn More
What Are Parental Rights in a Divorce?


Related articles

If the Wife Filed for Divorce, Who Will Get Custody of the Kids?

Of all the issues attached to divorce, none can be quite as emotionally draining as a child custody dispute. If the divorcing couple cannot reach a custody agreement on their own, the court steps in. The judge evaluates a variety of factors before determining the custody arrangement that meets the child's best interests. Child custody decisions are not made on the basis of which parent initially filed for divorce.

What Does Permanent Custody Mean?

One of the biggest issues couples with children face during a divorce is who gets custody of the children. Many states have adopted gender-neutral custody laws. This negates the age-old “tender years” doctrine, which dictated that the mother is generally the party best suited to provide permanent care for young children. Because gender is no longer a factor in most custody disputes, courts must examine other aspects of each parent's life when settling custody disagreements.

Court Ordered Counseling in Divorce Cases

Divorce cases can quickly become extremely contentious, especially when there are children involved. Judges may order parents to attend counseling and encourage the parties to work together as a means of reducing conflict and resolving disputes. There are several different types of counseling available and the counseling ordered can vary with state law and the specifics of a case. The parties must attend all counseling sessions and provide proof of attendance. Failure to do so could land them in contempt of court.

Get Divorced Online

Related articles

Visitation Rights During Separation

No parent possesses a legal right to deny the other parent visitation rights when they are informally separated, yet ...

Tips for Winning a Child Custody Battle

When making a child custody determination, most jurisdictions make a decision based on the best interests of the child. ...

The Proper Steps in a Custody Battle

Custody battles erupt over legal custody, physical custody and child support of a child. You can file a petition for ...

Idaho Child Custody Rights: A Child's Right to Decide

In Idaho, parents may have joint custody, which allows both to make important decisions concerning the child and spend ...

Browse by category
Ready to Begin? GET STARTED