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How Custody is Determined When Parents Separate

Posted on August 15th, 2014

Written: J. Randolph Smith

Custody of child (or children) of parents who live separately is generally determined by the agreement of the parents. But what happens if the parents cannot agree on who should have custody of the child when they separate?

Controversies over custody will be resolved by a judicial proceeding with a hearing before a judge.  At the hearing the parents would present witnesses as well as exhibits that relate to the custody of their child.  The judge would then determine which parent should have legal custody and primary physical custody as well as visitation by the non-custodial parent based on the “best interest” of the child.  In determining best interests of a child for purposes of determining custody or visitation arrangements, the judge considers the following:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, and the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the judge deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse or sexual abuse; and

10. Such other factors as a judge deems necessary and proper to the determination.

The judge will communicate to the parents the basis of the decision either orally or in writing. This communication shall set forth the judge’s findings regarding the relevant factors set forth above.

The decision will award legal custody to one or both parents, and will decide which parent shall have primary physical custody of the child.  The decision will also determine visitation, generally or specifically, that the non-custodial parent will have with the child.

The parent with legal custody means that parent decides how the child is raised.  Courts often award legal custody to both parents who must work together on raising their child.

Physical custody is usually given to one parent who maintains the primary residence of the child.  The other parent would then have visitation rights with the child on a regular schedule or modified schedule based on special circumstances of their routines and distances between the parents.

There are many immediate and long term matters that must be considered in custody and visitation cases.  If you are facing these matters you should consult with an attorney experienced in family law.  Feel free to call Smith & Well, PC for a consultation.

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