In any type of separation of parents (divorce, annulment, etc.), the court must make orders concerning the “legal custody and physical placement” of any minor child. These terms control the legal status of children in relation to their parents, and which parent has the ultimate say over the child’s upbringing.
The “best interests of child” is the single most important consideration in any family law court. It influences every decision the judge makes, not just about who gets the child when, but how much support is paid and whether you can move out of state, and anything else that might impact the child.
“Legal custody” means “the right and responsibility to make major decisions concerning the child,” except where the court has specifically issued orders to the contrary. Legal custody can be sole or joint. Sole custody just means only one parent has ultimate custody. Joint custody means both parents share legal custody and neither’s rights are superior.
“Major decisions” is a phrase used in the statutes, and so it comes with some legalese baggage. The phrase “includes, but is not limited to decisions regarding”:
- Consent to marry
- Consent to enter military service
- Consent to obtain a motor vehicle operator’s license
- Authorization for nonemergency health care
- Choice of school and religion.
The court can divide up major decisions between ex-spouses with joint custody. As in, he picks the school, she picks the church.
“Physical placement,” is the right to have a child physically with you for certain periods of time, during which you have the “right and responsibility” to make routine daily decisions regarding the child’s care, consistent with major decisions made by a person having legal custody (if other than you).
Check these topics for more information:
How Does The Court Decide Whether To Give Joint Or Sole Custody?
What Is A Parenting Plan?
How Is Physical Placement Allocated?
What Is Mediation?
How Is Domestic Abuse Handled In The Custody Decision?
Can Someone Besides A Parent Be Given Custody?
Besides Parents, Who Can Get Visitation Rights?
Can I Get A Custody Order Changed?
My Ex Isn't Complying With The Placement Order. What Can I Do?
What If I Want To Move Away?
The court is required to assume that joint custody
is in the best interests of the child unless the facts show otherwise. The factors the court considers are many, including:
- The wishes of the child’s parent or parents, as shown by any stipulation between the parties, any proposed parenting plan or any legal custody or physical placement proposal submitted to the court at trial.
- The wishes of the child.
- The relationship of the child with his or her parents, siblings, and any other person who may significantly affect the child’s best interest.
- The amount and quality of time that each parent has spent with the child in the past
- Any necessary changes to the parents’ custodial roles and any reasonable life-style changes that a parent proposes to make to be able to spend time with the child in the future.
- The child’s adjustment to the home, school, religion and community.
- The age of the child and the child’s developmental and educational needs at different ages.
- Whether the mental or physical health of a parent, minor child, or other person living in a proposed custodial household negatively affects the child’s intellectual, physical, or emotional well-being.
- The need for regularly occurring and meaningful periods of physical placement to provide predictability and stability for the child.
- The availability of public or private child care services.
- The cooperation and communication between the parties and whether either party unreasonably refuses to cooperate or communicate with the other party.
- Whether each party can support the other party’s relationship with the child, including encouraging and facilitating frequent and continuing contact with the child, or whether one party is likely to unreasonably interfere with the child’s continuing relationship with the other party.
- Whether there is evidence that a party engaged in abuse of the child.
- Whether a person the parent is dating or who lives in the house has a criminal record and whether there is evidence that he/she has engaged in abuse or neglect of any child.
- Whether there is evidence of spousal battery or domestic abuse.
- Whether either party has or had a significant problem with alcohol or drug abuse.
- The reports of appropriate professionals.
- Any other factors the court may determine to be relevant.
The court may not consider:
- Whether a parent who is a service member has been or may be called to active duty in the U.S. armed forces and is, or in the future may be, absent from the service member’s home.
- Whether a child should be placed with a particular parent just because of the sex of the parent.
A court may only grant sole custody if it’s in the best interests of the child and both parents agree. If they don’t, the court can still order joint custody if at least one parent requests it and the court specifically finds any of the following:
- One party is not capable of performing parental duties and responsibilities or does not wish to have an active role in raising the child.
- Exercising joint legal custody would present substantial obstacles.
- The parties will not be able to cooperate in future decision making. (If there has been domestic violence, the court assumes this to be the case.)
The court may not give sole legal custody to a parent who refuses to cooperate with the other parent if the court finds that the refusal to cooperate is unreasonable.
Unless the parties successfully participate in mediation, a party seeking sole or joint legal custody or periods of physical placement must file a “parenting plan” with the court. This plan is the first step in a court making the custody decision.
A party required to file a parenting plan under this subsection who does not timely file a parenting plan waives the right to object to the other party’s parenting plan. A parenting plan must provide the following information:
- What legal custody or physical placement the parent is seeking.
- Where the parent lives currently and where the parent intends to live during the next 2 years.
- Where the parent works and the hours of employment.
- Who will provide any necessary child care when the parent cannot and who will pay for the child care.
- Where the child will go to school.
- What doctor or health care facility will provide medical care for the child.
- How the child’s medical expenses will be paid.
- What the child’s religious commitment will be, if any.
- Who will make decisions about the child’s education, medical care, choice of child care providers and extracurricular activities.
- How the holidays will be divided.
- What the child’s summer schedule will be.
- Whether and how the child will be able to contact the other parent when the child has physical placement with the parent providing the parenting plan, and what electronic communication, if any, the parent is seeking.
- Whether equipment for providing electronic communication is reasonably available to both parents.
- How the parent proposes to resolve disagreements related to matters over which the court orders joint decision making.
- What child support, family support, maintenance or other income transfer there will be.
- If there is evidence that either party engaged in interspousal battery or domestic abuse, how the child will be transferred between the parties for the exercise of physical placement to ensure the safety of the child and the parties.
Physical placement is the allocation of when you get the kids. It’s that Monday through Wednesday and every other weekend routine. The parties have an opportunity through mediation
or parenting plan
to set their own placement, which the court approves after considering the standard custody factors
. The court considers those same factors if the parties are unable to agree. The court may not
deny or give extra placement for meeting or failing to meet any financial obligation to the child or former spouse.
The court is required to set a placement schedule that allows the child to have regular, meaningful periods of physical placement with each parent that maximizes the amount of time the child may spend with each parent, taking into account geographic separation and accommodations for different households.
A child is entitled to periods of physical placement with both parents unless the court finds that physical placement with a parent would endanger the child’s physical, mental or emotional health.
The court may grant to either or both parents a reasonable amount of electronic communication at reasonable hours during the other parent’s periods of physical placement with the child.
Mediation is a cooperative process in which the parties to a divorce, their attorneys, and a mediator (someone other than the judge) sit down in an informal atmosphere and try to work out their disagreements, with a focus on the best interests of the children. The mediator may be either appointed or private, but in either case must possess skills and training in dispute resolution and domestic issues. If custody is contested in a divorce, the court will order at least one mediation session.
Mediation is designed to hammer out custody arrangements. In fact, by law, the mediator cannot help you work out property division, maintenance or child support issues unless the issues are directly related to legal custody and the parties agree in writing.
The mediator may interview the children involved with or without parents present.
If the court finds that one parent has engaged in a pattern or serious incident of spousal battery or domestic abuse, the court must initially assume it is against the best interest of the child to award joint or sole legal custody to that parent.
This assumption can be defeated by showing proof of all of the following:
- The parent who committed the battery or abuse has successfully completed treatment for batterers provided through a certified treatment program.
- The parent is not abusing alcohol or any other drug.
- It is in the best interest of the child for the party who committed the battery or abuse to be awarded joint or sole legal custody based on the standard custody factors.
If the court finds that both parents engaged in a pattern or serious incident of spousal battery or domestic abuse, the assumption against custody is applied to the parent the court finds to be the primary physical aggressor. The court may also find that neither was the primary, and if so the assumption is not applied. In deciding this, the court considers:
- Prior acts of domestic violence between the parties.
- The relative severity of the injuries, if any, inflicted.
- The likelihood of future injury to either of the parties resulting from acts of domestic violence.
- Whether either of the parties acted in self-defense.
- Whether there is or has been a pattern of coercive and abusive behavior between the parties.
- Whether one parent was convicted of a domestic violence crime against the other (this one automatically makes you the primary aggressor)
- Any other factor that the court considers relevant.
If it’s in the best interest of any child, and if the court finds that neither parent is fit or able to care for the child, the court may transfer legal custody of the child to a relative of the child, to a county department, to a licensed child welfare agency, or, in a county having a population of 500,000 or more, the department of children and families.
Reasonable efforts must first be made to prevent the removal of the child from the home.
Grandparents, great-grandparents, stepparents or any person who has maintained a relationship similar to a parent-child relationship with the child may petition the court for reasonable visitation rights if the court determines that visitation is in the best interest of the child. Whenever possible, the court will consider the wishes of the child.
A special rule applies to allow visitation rights for grandparents when the child’s parents never married, if the court finds:
- The child is an out-of-wedlock child whose parents didn’t later marry.
- The paternity of the child has been determined if the grandparent filing the petition is a parent of the child’s father.
- The child has not been adopted.
- The grandparent has maintained (or attempted) a relationship with the child but has been prevented from doing so by a parent who has legal custody of the child.
- The grandparent is not likely to act in a manner that is contrary to decisions that are made by a parent who has legal custody of the child and that are related to the child’s physical, emotional, educational or spiritual welfare.
- The visitation is in the best interest of the child.
Unless the child is being harmed, a court may not modify an order of legal custody or an order of physical placement if the change would majorly alter the time a parent has with the child until two years have passed from the entry of the original order. However, if the parties already have substantially equal periods of physical placement pursuant to a court order and circumstances make it impractical for the parties to continue to have equal placement, a court may modify the order if it is in the best interest of the child before the two years is up.
After the two year period, a court may modify an order of legal custody or an order of physical placement where the modification would substantially alter the time a parent may spend with his or her child if the court finds:
- The modification is in the best interest of the child.
- There has been a substantial change of circumstances.
The court is required to start with the assumption that keeping things the way they are is in the child’s best interest. Also, a change in the economic circumstances or marital status of either party alone is not sufficient to meet the standards for modification.
If a parent does not use the placement granted by the court, the court can order the placement changed.
The parties can also change legal custody and placement by stipulation.
If your ex has denied or greatly interfered with one or more periods of physical placement, or you have incurred expenses as a result of your ex’s intentional failure to exercise one or more periods of physical placement, the court is authorized to:
- Issue an order granting additional periods of physical placement to replace those denied or interfered with.
- Award you a reasonable amount for attorney fees.
- Find your ex in contempt of court.
- Grant an injunction ordering your ex to strictly comply with the order of physical placement.
If the court issues an injunction and your ex does not comply with it, the violation is a Class I felony.
If you are going to move out of state or more than 150 miles away, or take the child out of state for more than 90 days, you have to provide your Ex with 60 days notice. If your Ex objects, you may not move until a court resolves the dispute. The dispute resolution may result in a complete change in which parent has legal custody of the child, based on what the court finds as being in the child’s best interest. The court is required to start with the assumption that keeping custody unchanged is best, but will hear evidence that taking the child away is unreasonable. It is up to the parent who objects to convince the judge that the move is bad for the child and a change in custody would be better. Under some circumstance4s, the court can prohibit the move altogether.
In making its determination the court considers:
- Whether the purpose of the move is reasonable.
- The nature and extent of the child’s relationship with the other parent and the disruption to that relationship which the proposed action may cause.
- The availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent.
- The child’s adjustment to the home, school, religion and community.
- The court may not use the availability of electronic communication as a factor in support of a modification of a physical placement order or in support of a refusal to prohibit a move.