Determining Physical Custody – How Does the Court Decide Who the Child Lives With?

If there is one subject that tears at a parent’s heart it is the issue of custody. Determining who gets custody and visitation is different in every case. There is no exact formula to follow, but there are guidelines and principles you will want to follow to make sure that your child gets the best possible arrangement.

I often hear people discuss custody when they have no idea what the meaning of the word is. Is it any wonder then that people are so confused and scared about this? So let’s define what we are really talking about here. There are two types of custody that the court considers: (these are generalizations, not legal definitions)

• Legal Custody – The right to make decisions regarding education, medical care, dental care, and religion.
• Physical Custody – This is the right pertaining to where the child typically resides.

When both parents have these rights it is considered “Joint” Legal or Physical Custody. Even if the living arrangement isn’t an equal split, the parent with less time can be deemed to have Joint Physical Custody.

No matter what type of Legal and Physical Custody (sole or joint) are granted the visitation schedule needs to be worked out. Read that again then come back. What most people are talking about is the visitation schedule (sometimes referred to as a parenting plan) not custody. While custody does have certain rights, parents almost always have the right to visitation with their children.

First things first. If the parents can come to an agreement, they can draw it up and the court will likely accept it as is and simply file it because it meets the needs of all parties and the court doesn’t want to interfere if it isn’t needed. However, if the parents can’t come to an agreement, the court considers how much visitation time a parent will receive, and is guided by the “best interests of the child." This is where you get do your homework and really build your case. If the child is an infant and the mother breast feeds, fathers’ visitation is likely to be short daytime visits. If one parent lives out of state, the visits are likely to be holidays and summers. If the parents live close to each other, the child is healthy, 7 or 8 years of age or older, and both parents work normal schedules, it is highly likely that an almost equal schedule can be reached. You should be seeing some practical patterns emerge at this time.

Finally, let’s look at how the child’s wishes affect the outcome. It is a myth that if a child is 12 the court will do what they want. There is no magical age and no guarantees. When the court interviews the child, they do so privately. What the child says is kept private and is not shared with anyone. The court will take into account the situation of both parents, the age of the child and how mature they are, and what the effects of the child’s wishes would have on the relationships of the child with both parents.

You can see that there are many factors that the court must weigh before making a decision. There are no hard and fast rules and no one can predict the outcome. But you can put forth a reasonable argument based on your circumstances if you know what the court is looking to accomplish.