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In most states, family courts determine child custody arrangements based on what is in the best interests of the child. The courts look at several factors in making this determination, such as the parents’ desire and ability to care for the child, the emotional bond between the child and both parents, the adjustment needed if the child must move to a new area, and, if old enough, the child’s wishes. Courts consider each case on the individual needs of the children, including:
Separating parents' rights will vary depending on the type of child custody and visitation. Legal custody is the court-granted right to make major decisions on behalf of the child. This includes choice of schools, religious education, health care, and discipline. Physical custody determines where the child will live and what visitation rights will be awarded.
Most child custody arrangements are "joint custody," or "shared custody." Both parents have joint legal custody, even if one parent has more time with physical custody. For example, a child may live primarily with one parent. But this does not necessarily mean the parents do not have joint legal custody. Both parents have the right and responsibility to make major decisions in the child’s life and adhere to a parenting plan that outlines the specific arrangement.
There are specific legal procedures that are needed to modify an existing child custody or visitation order. The process may vary from state to state and on the specific circumstances of each case. Consulting with an attorney is important to understand the laws in your area. Generally, steps include:
Custody can be determined by the parents themselves in non-aggressive or non-acrimonious divorces or separations free of abuse or other aggravating factors, or by the courts themselves in cases where neither parent can mutually agree to terms beforehand.
If a custody case proceeds to court, the judge will consider things such as the child's welfare and best interests. The judge will look at the health and habits of both parents, their ability and history of being a primary caregiver, their living arrangements (new romantic partners, suitable quarters for a child, environmental concerns), and so on. The wishes of the child may also be given some weight, depending on the age of the child and the circumstances surrounding the case in question.
Custody and visitation terms are easy enough to change in amenable arrangements where both parents are on speaking terms and fine with moving the schedule around. Some paperwork may be involved via each parent's respective attorneys if there is a formalized schedule that needs to be updated.
In more contentious cases, custody and visitation terms may be changed by court order, generally requiring a hearing from both parties. The reasoning behind any potential custody or visitation change (a change in job hours, ability to take care of a child, living environment, allegations of abuse or similar) may be considered, and the opposing party will have the opportunity to defend themselves against any such claims as well as to reiterate their own stance.
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