Child Custody

When custody must be spelled out because of a couple's divorce, the custody arrangement usually becomes part of the divorce decree. The decree names the parent with whom the child will live, how visitation will be handled, and who will provide financial support. Courts consider a custody award to be subject to change until the child comes of age, and in most states proof of a "change in circumstances" may overturn an earlier award. This flexibility is intended to allow for the correction of poor or outdated decisions, but it consequentially enables some parents to wage bitter custody battles that can last for years.

In a typical divorce involving at least one child, permanent physical custody is awarded to the parent with whom the child will live most of the time. Usually, the custodial parent shares joint legal custody with the noncustodial parent, meaning that the custodial parent must inform and consult with the noncustodial parent about the child's education, health care, and other concerns. In such situations, courts may order visitation, sometimes called temporary custody, between the child and the noncustodial parent. A clear schedule with dates and times may be written into the order, or a court may simply state that visitation should be reasonable. CHILD SUPPORT is a common requirement and is paid by the noncustodial parent to the custodial parent as assistance in raising the child.

The typical arrangement is subject to some exceptions. Some courts allow parents to retain joint physical custody, in which the child spends equal time with both parents. In California, the Family Code, for example, establishes a presumption that joint custody is in the child's best interest, thus placing joint custody as a preferred option when courts make custody determinations in that state. Cal. Fam. Code. Ann. § 3040 (West 1995). Advocates of joint custody argue that it lessens the feelings of losing a parent that children may experience after a divorce, and that it is fair to both parents. Many courts, on the other hand, resist ordering joint custody if either parent does not want it, due to the high degree of cooperation it requires, especially when the children involved are young or if the parents live a great distance apart, such as in separate states.

Split custody is an arrangement in which the parents divide custody of their children, with each parent being awarded physical custody of one or more children. In general, courts try not to separate siblings when awarding custody.