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Child Custody and Visitation


The law presumes that both natural parents are the natural custodians of their children. The law does not favor either the mother or father.  Either of the parents may petition the court for custody of the child/children. 

The law looks at the "best interests" of the child standard when deciding on child custody and visitation.  The "best interests" of the child standard looks at certain factors to determine what is best for the child or children.  The court will determine questions of both physical and legal custody. 

"Best Interests of the Child" Standard


Regardless of any agreement you may have reached, the courts will look to numerous factors to determine the "best interests" of the child.  No single factor is most important.  This is a list of some, but not all, of the factors, that courts will consider:

  • Who is the primary care giver who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?

  • Fitness: What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party's spouse, or any child residing within the party's household (including another child).

  • Character and Reputation of the parent.

  • Agreements: Is there a custody agreement already in place?

  • Ability to Maintain Family Relationships: Who will be best able to help the child keep family relationships?  Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any bad action on the part of the other parent?

  • Child Preference:  A child of at least 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody.  The court will rarely hear from a child under 7 years old. The child's maturity and whether the child can tell the truth will guide the decision whether a child may be heard.  However, a child does not have the final say.  The judge may choose to interview the child in chambers, outside the presence of the parents.   Additionally, the court has the power to appoint an attorney for the child in contested cases.

  • Material Opportunity: Which parent has the financial resources to give the child more things?

  • Age, Health and Gender of Child

  • Residences of Parents and Opportunity for Visitation: How close do the parents live to each other?  How close do they live to members of the child's extended family?  Which parent lives closest to the child's school and social circle?

  • Length of Separation: How long has the parent been separated from the child?

  • Prior Abandonment or Surrender of Custody: Is there a history of one parent walking out and leaving the other parent to cope with the child and the home?  Which parent left when you last broke up?

  • Religious Views: These will be important in the court's decision only if you can show that religious views affect the physical or emotional well-being of the child.

  • Disability - A party's disability is only relevant to a custody decision if the disability affects the best interest of the child.

Joint Custody Agreements and Parenting Plans

Parents can agree on some combination of shared physical and joint legal custody.  These agreements should provide enough details to ensure that the parties avoid misunderstandings.  A parenting plan is a written agreement about how the parents will work together to take care of the child.  It is important that an attorney assist you with these agreements to ensure you take into consideration important factors which may not be readily apparent at the time of the agreement.  The court will look very closely at Joint Custody agreements to ensure they meet the best interests of the child/children. 

Custody and visitation arrangements are never permanent.  As situations change, a parent can always petition the court to modify a court order.

Contact me today for assistance with your child custody and visitation concerns.


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