Child Custody Law

By Samantha-Rae Tuthill | Reviewed by Nicole Prebeck, Esq.

Last updated August 7, 2024

When one separates, or divorces, their co-parent, there are lots of things to consider, such as legal custody of the child, parenting time schedules, child support, and more. What a custody order and visitation order should specify can be a daunting task.

Each state has its own child custody laws and what a court order should and should not specify. You should speak with an experienced family law attorney in your area for state-specific legal advice.

What Is Child Custody?

Most people have heard of child custody, but not everyone is aware of the different types of custody arrangements that can be involved in a child custody case. You and your co-parent will need to decide which options work best for your family, and more importantly, work best for your child and their well-being.

There are two types of custody: legal custody and physical custody.

Physical Custody

Physical custody relates to where the minor child lives. Physical custody may be sole or joint. In many states, the law doesn’t use the physical custody label but instead uses terms such as parenting time, timesharing, or visitation schedule when talking about the amount of time a child spends with each parent.

Generally, there are two types of physical custody:

Sole physical custody: Typically this is when one parent has the child around 100% of the time and the other parent does not have any amount of time or visitation with the child.
Joint physical custody: This is when parents both have some division of parenting time. These parenting plans could have parents sharing equal time, such as the child spending one week with one parent and the next week with the other parent. A more common parenting plan schedule is where the minor child primarily lives with one parent and the other parent has time every other weekend, and holidays and school breaks are divided.

Legal Custody

While physical custody generally refers to the visitation rights of a custody agreement, legal custody involves parental rights to make important decisions for their child. Unless there are certain circumstances such as domestic violence, significant mental health concerns, or other important factors, joint legal custody is generally awarded.

Like physical custody, legal custody breaks down to:

Sole legal custody: This is when one parent makes all the important decisions that affect the child, such as medical care and health care, religious upbringing, and educational decisions.
Joint legal custody: This is when parents equally share in the decision-making process for their child. This often requires parents to compromise and make choices together that are in the best interest of the child.

If there are disagreements about major decisions for the minor child in joint legal custody arrangements, such as certain medical procedures or religious decisions, you may need to go to family court and have a family court judge decide the issue.

How Is Custody Decided?

In some cases, you may be able to work out the terms of your custody arrangements through custody mediation without going through the courts. Even with mediation, you’ll need to get your custody agreement approved by the court to make it a court order. If you are unable to reach an agreement, you will need the court to help decide custody of a child.

Child Custody Hearings

Child custody decisions may be made as part of a divorce proceeding or separately as a custody action in the case of an unmarried couple.

At the hearing on custody issues, each parent will present information to support and argue for the custody arrangement they prefer. You’ll present evidence that supports your claims, such as financial and medical records, police reports, or emails that reinforce why you should have the rights over your child’s care.

Each parent, and witnesses such as babysitters, teachers, and neighbors, may need to testify. This will help the judge decide on a final custody arrangement. Many factors influence the judge’s decision. The legal standard in all states is what is in the “best interests” of the child. Each state outlines these factors in a different way, but many similarities between states exist.

Some of these factors include considerations such as:

Home stability and if your child will be safe in your care
Your work schedule
Your ability to promote a healthy relationship of the child to the other parent
Additional family members in the home
Your financial stability

Child Custody Evaluations

In some cases, there may be concerns about a parent’s ability to provide a safe home for their child. When this occurs, the family court judge may order a custody evaluation. This could be a psychologist or other mental health professional, who will speak with both parents and interview the minor child.

The evaluator may also want to observe each parent and the minor child together, they may speak to third parties such as stepparents, grandparents, teachers, or other caregivers.

The evaluator could even administer psychological tests such as personality tests or tests that are designed to help determine if a parent has undiagnosed mental health conditions like depression or personality disorders. The goal is to get a comprehensive overview of each parent’s parenting abilities, the parents’ interactions with their child, and form an opinion on what legal and physical custody arrangements are in the best interest of the child.

How Does Custody Affect Child Support?

While each state calculates the amount of child support differently, in most cases the court will look at each parent’s salary, wages, unemployment benefits, interest payments, the number of kids being supported, the needs of the child, and what the paying parent can reasonably afford.

Once the court determines what the child support amount will be, the paying parent will need to make the payments to the recipient parent on a set schedule, usually monthly. Failure to make payments can result in penalties ranging from fines to jail time.

It is important to note that gone are the days when child support is only paid by a parent who is termed as a “noncustodial parent.” Even in joint legal custody or joint physical custody situations, one parent may still be obligated to pay child support to the other parent.

Speak to an Experienced Child Custody Attorney Today

Custody of a child can be complex and stressful for everyone. It is always best to seek legal advice for your specific situation and speak to an experienced child custody attorney in your area.

Your Next Step

Enter your location below to get connected with a qualified Child Custody attorney today.