Prior to a divorce, both parents are on equal footing when it comes to their children. This includes determining where the children reside, as well as making important decisions affecting their lives. Divorce changes the landscape, particularly because it’s unlikely the parents will be living in the same residence.
But that only enhances the importance of both parents continuing to be actively involved in raising their children. That’s really what the term “parental rights and responsibilities” encompasses. And the courts will give parents every opportunity to determine how to best work this out. It’s only when parents can’t agree that a judge will have to make those decisions for them.
Contrary to what some may think, custody is not an all-or-nothing proposition, where one parent has total control, shutting out the other. In fact, the term “custody” has become such a lightning rod, that some states (like Maine and New Hampshire) prefer not to use it.
Custody is actually a multi-layered concept. Legal custody refers to the right to make decisions regarding a child’s upbringing, like: public school or private school; religious education; and, non-emergency medical needs. Physical custody refers to where a child resides.
Both legal custody and physical custody can be “sole” or “joint.” Sole legal custody means one parent gets to make all the significant decisions concerning the child. With joint legal custody, both parents take part.
Sole physical custody means a child resides exclusively with one parent, while the other parent has some visitation. Joint physical custody entails the child living with both parents. (This can be anywhere from a few days a week to literally six months out of the year with each.)
Note that sole legal custody is rare these days. It’s usually seen only in situations where a court finds one of the parents unfit to be involved in decision-making, perhaps because of a significant mental impairment or active substance abuse. Also be aware that sole physical custody doesn’t mean the other parent doesn’t get to spend time with the child, as you’ll see in the next section.
In situations where one of the parents has sole physical custody, the other parent will ordinarily have parenting time, unless that parent poses a danger to the child. Parenting time can encompass virtually any schedule the parents can agree on—as long as it doesn’t adversely affect the child.
Having the child stay with the other parent every other weekend, as well as that parent spending a few hours during the week with the child, is fairly common. Extended time for summer vacations is also typical, as is alternating holidays each year. It’s not unusual for parenting time schedules to evolve as the child gets older and becomes involved in more activities.
As far as the courts are concerned, an agreement between parents concerning their custodial rights and responsibilities is ideal. And courts often offer assistance in that regard.
For example, state divorce laws may mandate that parents attend court-sponsored classes, in which they learn about the impact of divorce on children. Additionally, if the parents are having difficulty reaching an agreement, the court may order them to attend child custody mediation sessions, in which trained court personnel attempt to help them resolve any lingering issues.
However, as indicated earlier, if the parents can't reach an agreement, then the courts will intervene. When deciding custody and parenting time issues, judges are guided by one overriding principle: do what's in the best interest of the child. In fact, sometimes the court will appoint an attorney or a “guardian ad litem” (guardian only for purposes of the court proceedings) to represent the child in a custody dispute.
In awarding custody, courts take several things into consideration. New Jersey judges, for example, look at factors such as:
That said, with the right frame of mind and some hard work, parents can usually avoid having a judge decide parental rights and responsibilities. Considering the emotional toll divorce takes on a child, it’s well worth the effort to reach an agreement and avoid a trial on the issue.
By law, it’s incumbent on both parents to provide financial support for their children. In a divorce, determining the amount of support is much less subjective than addressing custody and parenting time.
Every state has child support guidelines that set out a formula for judges to follow. In arriving at a calculation, the method primarily relies on the amount of each parent’s income. However, there are other factors a judge may need to take into consideration in determining the final support figure.
If you have questions about parental rights and responsibilities, consult with an experienced family law attorney in your area.