Custody & Visitation Law

Child Custody FAQ

Child custody can be one of the most contested issues during a divorce. And for couples who were never married or never lived together, deciding primary physical custody, visitation, and parenting time can be even more difficult.

Here is some helpful information if you're wondering how courts award custody and visitation rights or how to enforce child custody orders.

How Is Custody and Visitation Time Established?

Almost all family courts will make custody and visitation decisions in the best interests of the child. While that used to mean that mothers would retain primary physical custody of minor children, more and more courts are awarding custody to fathers or granting joint custody arrangements that allow equal time between both parents.

Even if parents reach their own parenting agreement, courts will review any custody arrangement to ensure it's in the child's best interests. What is meant by best interests varies by state. Among the factors courts will likely consider are:

  • The child's wishes (depending on state law and the child's age)
  • The interest in continuing a stable home environment
  • Necessary adjustments to a new school or community
  • The mental and physical health of each parent
  • Any evidence of parental drug, alcohol, or sex abuse
  • Any evidence of excessive discipline or emotional abuse of the child
  • Domestic abuse between the parents
  • The child's relationship with other members of the household and members of the extended family of either parent
  • Religious and/or cultural considerations

If one parent retains primary physical custody, the court will almost always grant the noncustodial parent reasonable visitation time. That decision -- including the amount of time, location, and other aspects -- will also be made in the child's best interests.

What Are Custody Evaluations?

Disputes may arise before, during or after the court issues a child custody order. These disputes may concern the child's well-being, a change in circumstances, or issues with visitation. If it would be helpful to the determination, the court may order a custody evaluation or some type of custody and visitation report from a neutral expert.

Custody evaluations usually involve in-home visits and interviews. The expert completing the evaluation may rely on interviews conducted by psychiatrists, psychologists, or other mental health professionals, designed to gather information on the child's relationship with both parents and living situations. Evaluators may also interview other relatives, schoolteachers or administrators, and anyone else who has regular contact with the child. Parents may also be subject to additional background checks, medical evaluations, or psychological testing.

While invasive, this process is designed to allow courts to make custody and visitation determinations in the child's best interest and to resolve any current or future disputes.

What Can I Do If the Other Parent Won't Let Me See Our Child?

Visitation interference is, sadly, all too common in child custody cases. Such interference can include everything from habitually showing up late to drop a child off for scheduled parenting time to taking a child across state lines or out of the country without the permission of the other parent or the court.

Often, the parent with visitation rights also has an obligation to pay child support. And the inclination is to not pay if the other parent interferes with those rights. However, child custody and child support are two separate determinations, and enforcement of each is handled independently. So, your child support obligation is not dependent on a certain amount of visitation time, and vice versa.

If the other parent is interfering with court-ordered visitation or custody, your best option is to notify the court that issued the ruling. The other parent could be found in contempt of court and face civil penalties. If the interference is serious -- if you don't know where the other parent took your child, for example -- you should contact an experienced family law attorney or the police.

What if My Child Doesn't Want to Visit With the Other Parent?

More than anyone, parents know how hard it is to convince a child to do something they don't want to do. But when it comes to custody and visitation orders, parents must make an effort to get their kids to comply, especially younger children.

In many cases, courts consider parents to have control over their children, so if a young child refuses to go with the other parent and therefore not follow a custody or visitation order, a court could interpret that as custodial interference on the part of the parent the child stays with. On the other hand, if a 15- or 16-year-old doesn't want to comply with visitation time, the court is more likely to attribute the interference to the child.

Either way, both parents need to talk to their children and make sure they know how important it is to follow court-ordered custody and visitation instructions because those were made in their best interests. If children still don't want to adhere to the schedule, you may need to file for a custody modification.

Do I Need the Other Parent's Permission to Move Out-of-State With Our Child?

If a parent wishes to move and bring the children with them, and the move will interfere with an existing custody and visitation order, they will generally need to get the permission of the other parent or file an application with the court. In some states, the relocating parent has the burden to demonstrate a legitimate and reasonable purpose for the move, while other states place the burden on the objecting parent to show that relocation will harm the child.

Courts tend to allow parents to move, provided there is a legitimate reason. And, in any case, they will make a determination in the child's best interests. In doing so, courts will consider the following factors:

  • The potential involvement of the nonmoving parent with the child
  • The ability to preserve the relationship with the nonmoving parent
  • The child's preference
  • The child's age and needs (as well as any special needs)
  • The moving parent's history of promoting parenting time
  • The move's effect on the child's life
  • Each parent's motives

How Is Visitation/Parenting Time Determined During the Summer or Over Holidays?

Holiday schedules are commonly included in custody and visitation orders or allocation of parenting time agreements. Typically the important holidays to that family will be divided between the parents in a manner that makes sense for them. Some orders will alternate every other year, and some may grant the same holiday to a certain parent every year. Ironing out these details is important to finalizing an agreement. Including days and times the holiday begins and ends is important in order to facilitate transportation and to make sure both parents have the same understanding.

Generally, custody and visitation time will continue over the summer the same way it does during the school year. However, parents may come to an agreement under which one parent has primary physical custody during the school year and the other has primary custody during the summer months. They may adjust the schedule for vacation or camp time or other reasons that affect the summer schedule.

The same "best interests of the child" rules would apply for any such parenting agreement, and it would be subject to court approval. This would also be true for parenting time arrangements regarding the child's extracurricular activities.

What Rights Do Stepparents Have Regarding Visitation?

When parents marry someone else or re-marry after a divorce, children can often form strong bonds with their stepparents. Stepparents may also have a strong interest in preserving custody and visitation time with children.

Stepparents should be aware, however, that these interests are subject to parental rights to custody and visitation, and would very rarely trump a parent's right to see their children. In certain rare cases, stepparents may be granted some visitation rights. If you are a stepparent and have a question about visitation after a separation or divorce, it is best to consult with an experienced family law attorney.

How, When, and Why Can a Child Custody Order Be Modified?

Although custody and visitation orders may seem set in stone, they can be modified if one or both parents can demonstrate a substantial change in circumstances. The modification requires either agreement of the parties or for a parent to file a petition with the court and is subject to judicial approval. Depending on the state, the standard for modifying a custody order varies. A parent may be required to demonstrate additional factors to modify, that were not required during the initial establishment of custody.

If you need to modify a child custody order, or have more questions about custody, visitation, and parenting time, contact an experienced family law attorney.