Custody and Visitation of Toddlers

By Heather Frances J.D.

When spouses divorce, they must decide how to split custody of their children, including setting a visitation schedule so each parent gets to spend time with the children. If the parents cannot agree on custody and visitation arrangements, the court will make these decisions for the parents. Though the process is generally the same for all children, toddlers may need special consideration because of their young age.

Legal vs. Physical Custody

Courts divide both legal and physical custody between the toddler's parents. Legal custody is the right to make important decisions for a child, such as where he goes to school and which doctor he visits. Courts often order that the parents share legal custody of their toddler, called joint legal custody, meaning that both parents have the legal ability to make these important decisions. Physical custody refers to the child's living arrangements and which parent spends physical time with the child. Courts can award joint physical custody -- meaning that the toddler lives with both parents in equal time shares -- or, the court can award sole physical custody -- also called primary physical custody, meaning the toddler lives with one parent more than the other.

Setting a Visitation Schedule

For many divorces, courts have an established standard visitation schedule for parents to use. The standard schedule, which typically involves a fairly even split of time, perhaps alternating weekends and holidays, can vary by court. Parents can agree to use this schedule or another schedule, and the court is likely to approve the parents' plan. Sometimes, courts award custody without a standard visitation schedule when the circumstances require another solution. For example, courts can award supervised visitation when the toddler's safety requires supervision when he is with one of his parents. Courts can refuse visitation for one parent when he presents a danger to the child, even when supervised.

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Best Interests Standards

When courts make custody and visitation decisions, typically, they consider the best interests of the toddler involved, regardless of the best interests of the parents. In other words, courts are much more concerned with the toddler's well-being than that of his parents. For example, if a visitation schedule is inconvenient for a parent but best for the child, the court might order that schedule, despite the inconvenience. To determine what is in a child's best interests, courts look to state laws. Often, these laws lay out specific factors the court must consider before awarding custody or a visitation schedule, including the child's attachment to each parent and each parent's ability to care for the child. For example, Connecticut law specifically requires courts to consider a child's age when making custody and visitation decisions.

Special Considerations for Toddlers

Though courts generally follow the same sets of laws for custody and visitation of toddlers as for other children, toddlers, because of their young age, may end up with a different custody arrangement and visitation schedule than an older child might. For example, if a toddler has a very strong attachment to his mother because of his age, a court may be reluctant to award substantial visitation time to his father. Typically, toddlers need predictable routines to feel safe and secure. Thus, it may be difficult for a toddler to adjust to each parent's way of doing things as a toddler switches between homes. Parents can help their toddlers adjust to a visitation schedule by establishing new rituals to signal the transition between homes, such as always transporting the child to the other parent's home after naptime or singing a goodbye song with the child.

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Child Custody Alternatives

References

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Rights of Divorced Parents Sharing Custody of a Child

While child custody and visitation is dictated by state law, every state awards custody and visitation based on the best interests of the child standard. In other words, parents must show that the visitation and custody that they are requesting represents what is best for the child. States do not automatically award custody to the mother or the father, and sometimes parents share custody of their children.

Shared vs. Residential Custody

In most states, two kinds of custody apply to all separating families: legal and physical. Legal custody refers only to major decision-making, and physical custody refers to the parent with whom a child lives. A parent with sole physical custody is sometimes referred to as the residential or custodial parent; this is the parent with residential custody. When a child lives a relatively equal amount of time in each parent’s home, this is referred to as shared custody, also often called joint custody.

Child Custody: Criteria for a Custodial Parent

During the divorce process, state courts may determine how to divide child custody between the divorcing parents, if the parents cannot come to their own arrangement. Each state sets its own rules for how custody can be divided, including the criteria each court will use to establish a custody arrangement. Generally, parents can agree to their own custody arrangement, but the court will rely on state guidelines, if the parents cannot agree.

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