Child Custody & Visitation FAQ

What is child custody?

Child custody is a term that refers to the rights and responsibilities that a parent carries with respect to his/her child.

What is child visitation and a "Parenting Plan"?

The term "child visitation" refers to the time when the non-custodial parent has the right to be with the child. The custodial parent's right to be with the child is often subject to the non-custodial parent's right to visit with the child.

The term "parenting plan" refers to the agreement between the parents or the court order which defines provisions for custody and visitation. The parenting plan also defines when the child is to be with the non-custodial parent.

What factors determine custody and visitation?

The primary consideration is, "What is in the best interest of the child?" The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.

Do the wishes of a child have any influence in custody decisions?

Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. However, the overriding question will always be: what is in the child's best interest?

Does an extramarital affair have an impact on custody?

It could, depending on the facts of the case. Again, the issue is "what is in the child's best interests? It could become a significant factor if the relationship represents a threat or puts the child in embarrassing situations.

Can custody rights be modified?

If there is a substantial change of circumstance that has a significant, adverse effect on the child, custody right can be modified.

Can visitation be denied to a non-custodial parent?

When one parent has abused or neglected a child, threatened removal of the child from the state, or abuses alcohol or illicit drugs, this parent's right of visitation can be denied and the other parent awarded sole legal custody and sole physical custody. Denial of visitation is an extreme step and strong evidence must be presented in a court hearing to deny a parent from having any visitation rights.

In less extreme cases, visitation could be allowed but subject to certain restrictions. Typically, in those situations visitation will be supervised. Supervised visitation is preferred to denial of visitation on the basis that there is a strong public policy to promote continuing and frequent contact between the child and both parents. Having the visit supervised is better than completely denying the non-custodial parent the ability to spend time with his/her child.

What happens when visitation rights are frustrated?

Frustration of visitation rights could be the grounds for modification of or termination of custody rights.

If child support is not paid, must visitation be allowed?

Yes. The issues of child visitation and child support are separate issues.

What if the custodial parent wants to move away from the non-custodial parent?

The primary factor of best interest of the child continues to be considered along with facts such as:

  • The existing custody and visitation arrangement
  • The attachment and support of the non-custodial parent and other relatives
  • The child's ties to the community, school, church or synagogue, and friends
  • The child's desires and wishes. In many states, a custodial parent can relocate if there is a valid reason for the relocation and the move does not result in harm to the child

A modified order of the court could provide additional time with the non-custodial parent during summer and other school recesses and the obligation of the custodial parent to pay the additional transportation expenses incurred in facilitating the visitation exchange.

Do grandparents have visitation rights?

Grandparents typically may join an action between the parents, or even start an independent action, for the purpose of obtaining a court order for visitation with grandchildren. However, the grandparent must show that harm will result to the child should the court not order visitation with the grandparent.

Who can claim a child as a dependent?

Generally, the parent who has custody of the child for the greater part of the year can claim the child as a dependent on the federal income tax return. There are several exceptions to the rule, such as the custodial parent releasing his or her right to the child's dependency.

Common Terms and Definitions Regarding Child Custody

Legal Custody: The parent with legal custody can make all decisions regarding the health, welfare and education of the child.

Physical Custody: Determines which parent has the actual, physical right to be with the child.

Sole Legal Custody: When one parent is awarded sole legal custody, that parent makes all decisions regarding the health, education and welfare of the child.

Sole Physical Custody: When one parent is given sole physical custody, the child remains with him/her and the other parent is excluded from having physical custody of the child (typically when the other parent has abused or neglected the child).

Joint Legal Custody: Both parents participate in reaching decisions regarding the health, education and welfare of the child.

Joint Physical Custody: Both parents have the ability to be with the child, typically joint physical custody is coupled with a parenting plan to determine who will be with the child at what particular time.

Shared Custody: Both parents equally share the legal and physical custody of the child. Typically found only where both parents are able to resolve their personal differences and keep them in check for the sake of raising the child in a caring, nurturing environment.