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What should we do about the children? What will happen to the children? Who will get the children? These are questions that always come up in divorce. What are the answers? Rule number one is the children themselves. Under the law, the court must base its decisions on what is in the best interests of the children. This standard gives the Court broad discretion. What each parent wants will be considered by the court. However, parental preferences will not control the court’s decision.
When considering child custody, it is important to understand that there are two types of custody that will be addressed in a divorce. (1) Legal custody and (2) physical custody. Joint legal custody means that both parents share the right and responsibility to make decisions regarding the child’s health, education and welfare. Under sole legal custody one parent has primary control over decisions regarding the child’s residence, health, education and welfare. The noncustodial parent has secondary visitation rights as ordered by the court. Joint legal custody may be granted without granting joint physical custody. In that event, while the parents share decision-making responsibility, the child resides with and is under the physical supervision of only one of the parents (the parent granted sole physical custody).
Read our Children and Divorce Guide
Legal custody is different from physical custody. Physical custody measures the amount of time that the children spend with each parent. There can be joint physical custody and primary physical custody. A joint physical custody award means each parent has “significant periods” of physical custody. Physical custody must be shared in such a way as to assure the child “frequent and continuing contact with both parents.” It does not mean the child’s time must be equally divided with each parent (i.e., one parent can still be the “primary caretaker”). Primary physical custody means that the children will spend most of their time under the care of one parent, while enjoying some visitation schedule with the other parent.
When issuing child custody and visitation orders consistent with the children’s best interests, courts adhere to two critical public policies: (1) Primary concern for children’s health, safety, welfare (child abuse and domestic violence are detrimental). The court’s primary concern is to assure the children’s health, safety and welfare. (2) Frequent and continuing contact with both parents and shared parenting. The custody/visitation award must assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing. Where there is no threat of child endangerment, the primary concern and frequent and continuing contact policies are on equal footing. But where the policies conflict (e.g., because domestic violence evidence shows contact with a parent could jeopardize the child’s safety), a custody or visitation order “shall be made in a manner” that ensures the child’s health, safety and welfare and the safety of all family members, the primary concern test shall take precedent.
“Frequent and continuing contact” is not defined, nor does the law specify a preference for any particular form of “contact.” Rather, the law encourages parents to share child rearing rights and responsibilities. To accomplish frequent and continuing contact, the Court will strive for an arrangement that approximates an unbroken family situation as closely as possible. Again, however, the court’s discretion must be exercised in light of the paramount policy of assuring the child’s and family’s safety.