Child Custody and Visitation

Child Custody usually comes in two parts.  There is legal custody and there is physical custody.  Legal Custody deals with who is going to have the right to decide for the health, safety, welfare, and education of the minor.  Physical custody deals with who is the Child going to be physically with most of the time.

In deciding how Custody is going to be awarded, the Court usually looks at the “best interest” of the child.  It is common for each parent to confuse this with what is “in their best interest.” 

It is a common situation where one spouse refuses to allow the other parent to see the children at the commencement of the divorce.  A spouse would do everything they can to frustrate the other parents right to visit and see their children.  It is sometimes used as a tool to get their revenge and vent their anger at the other spouse at the expense of the children depriving the children of their continuous relationship with their father/mother.  It is important in this situation for the other parent to assert their parental rights by moving for immediate temporary custody/visitation of their children also called “Pendente Lite Custody/visitation order. 

Sometimes, the other spouse would threaten to take the child out of the state or even worst out of the country where the other parent could never see them again. It is very important for the non-custodial parent to get an ex parte order restraining the spouse from removing the child out of the jurisdiction without his or her consent.

Permanent Custody and Visitation Orders are usually issued through a final judgment either by settlement between the parties or by Trial in the case of a settlement impasse.  It is usually more effective settling these issues through mediation since the parties are more in control of the terms of the Judgment.  The Parties may not be happy with the Judge’s decision if the case goes to trial and the outcome of the case become less predictable.  If the case involves complex issues such as abuse, alcohol, drugs, special needs of the child, etc., it may be necessary to obtain a custody evaluation for the Court to make a decision.

The Court retains jurisdiction on Child Custody and Visitation.  This means that even after a final judgment is obtained, the orders may be modified in the future until the child attains the age of majority.