Child Custody
There are two types of custody, “legal” and “physical”. Parents typically share both types unless one parent is deemed unfit or the parents cannot make decisions together.
Legal Child Custody
This is the right to make major decisions about a child’s welfare, such as where a child will go to school or whether a child will engage in religious activities, and whether a child should receive medical care.
Joint legal custody means that both parents share in the right and responsibility to make decisions relating to the health, education, and welfare of a child.
Sole legal custody means that one parent has the right to make all major decisions relating to the health, education, and welfare of a child, and may make decisions without input or approval from another parent.
Physical Child Custody
Refers to where a child will live after a divorce or separation. The parent has the right to have the child physically present in the home. If a child lives exclusively or primarily with one parent, that parent is usually referred to as the “custodial” or “residential” parent. The other parent is considered the “non-custodial” or “non-residential” parent and typically has visitation rights.
In a divorce there are two types of physical custody, Joint and Sole. Joint means that both parents have significant periods of physical custody. If a child’s time is divided equally between the parents, or close to equally, the parents are sharing joint physical custody. Sole physical custody means that a child resides with one parent, subject to the court’s authority to order visitation time with the other parent.
Child Custody Modification
Whether the issues of custody and visitation were agreed upon by the parents or determined by a court after a custody hearing, the parents may later agree to modify the court order as to who has legal custody, who has physical custody, who has rights of visitations, and the terms and periods of custody and visitation.
Basis for a Change
As a child grows older and has different needs or the parents form new relationships or get a new job, changes in the activities of all involved sometimes require a modification or change in the terms and conditions of custody and visitation. A parent with shared physical custody may move out of the state, making the terms of the custody order impractical. A parent with visitation may get a new job with work hours that conflict with periods of visitation. A child might have a special talent and may want to attend a school in a different state that will provide an opportunity to foster that talent, but only a grandparent has the ability to pick up and move with the child. A child who lives with a mother may want to spend more time with a father and choose to switch custody. Where there is a change that affects the child, there is a basis for changing the custody arrangement ordered by the court.
Modification
When the issue of child custody modification arises, the parties may discuss whether a change of custody is warranted and what the new terms should be. Any new agreement may be permanent in nature or only temporary. If the parties cannot mutually work out their differences or agree to a new custody arrangement, the parties can seek arbitration or mediation of the dispute. The same avenues of resolving changes of custody are available as to disputes between a parent and a nonparent.
When new terms are agreed upon by the parties, a new written agreement should be drafted clearly stating all of the terms agreed upon by the parties. The agreement should be signed by the parties and presented to the court for approval. It should be noted that where a change in custody requires a change in child support obligations, the new child support terms and the basis for the new terms must be incorporated into the agreement. Only in very rare circumstances will the court refuse to accept the agreement to modify custody. Court approval is required if either parent finds it necessary to seek enforcement of the modification agreement.
Brett Thorsteinson is ready to help you and protect your rights in a divorce or family law matter. Contact Brett and speak directly with a divorce attorney. We provide complimentary consultations, and are dedicated to bringing you a lasting resolution.
