Family Law FAQ #1
Does custody always go to just one parent?
No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes at least one of three forms:
- joint physical custody (children spend a substantial amount of time with each parent)
- joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
- both joint legal and joint physical custody.
In every state, courts are willing to order joint legal custody. About half the states are reluctant to order joint physical custody unless both parents agree to it and appear to be able to communicate effectively and cooperate with each other. In New Mexico and New Hampshire, courts are required to award joint custody, except where the children's best interests -- or a parent's health or safety -- would be compromised. Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement.
Can someone other than the parents have physical or legal custody?
Sometimes neither parent can appropriately assume custody of the children -- perhaps because of substance abuse, a mental health problem, absence or incarceration. In these situations, someone other than the parents may be granted custody of the children or given a temporary guardianship or foster care arrangement by a court. A court would rather have a child remain with family members than go with strangers. So if you are in this situation and you don't want your child to wind up in foster care, speak to relatives who may be willing to assume temporary custody.
What does reasonable visitation mean?
When a court determines the visitation rights of a noncustodial parent, it usually orders visitation at reasonable times and places, leaving it to the parents to work out a more precise schedule. Reasonable visitation allows the parents to exercise flexibility by taking into consideration both the parents' and the children's schedules. Practically speaking, however, the parent with physical custody has more control over the dates, times and duration of visits. He or she isn't legally obligated to agree to any particular schedule.
For the reasonable visitation approach to succeed, the parents must cooperate and communicate with each other frequently. If you suspect right off the bat that reasonable visitation won't work, insist on a fixed schedule and save yourself time, angst, and possibly money. If you've already agreed to reasonable visitation and it isn't working out -- for example, one parent is consistently late, skips scheduled visits or doesn't inform the other parent where he or she is planning on taking the children -- you can go back to court and ask that the arrangement be changed.
DISCLAIMER: This site and any information contained herein is intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.