Custody and Visitation Rights

Part of the divorce decree declares which spouse the children will with and the circumstances under which the other parent can visit them. While the details of this are often worked out before the divorce (with or without an attorney or mediator), in the event that an agreement cannot be reached, the court will make a decision, based on the best interests of the child or children.

There are two primary types of custody, physical and legal. Physical custody is awarded to parent with whom the child will live most of the time. Often, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" is right to make decisions about the child's education, religion, health care, and other important concerns.

Some parents settle on a joint-custody arrangement, by which the child spends approximately an equal amount of time with both parents. Some argue that this decreases the feeling of loss that a child may experience due to a divorce, however, other argue that it is in the best interests of a child to have one home, coupled with liberal visitation allowed to the "non-custodial" parent. Joint custody requires a significant amount of cooperation between the parents, and consequently, courts are hesitant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Another, less favorable option, is split custody, in which the children are divided between parents. Courts do not like to separate children when awarding custody.

In the event that parents are not married, most states require that the mother be awarded sole physical custody, unless the father actively seeks it. It is difficult for an unwed father to be awarded custody if the mother is a good parent, though he will take precedence over other relatives, foster parents, or prospective adoptive parents.

Factors in Custody Decisions

The best interest of the child is at the heart of the court’s decision when awarding custody, though this is often heavily influenced by the parent who has been the primary caretaker of the child. Other factors include:

  • The wishes of the child (if old enough to capably express a reasonable preference)
  • Mental and physical health of the parents
  • Religion and/or cultural factors
  • Need for continuation of stable home environment
  • Support and opportunity for interaction with members of extended family of either parent
  • Interaction and interrelationship with other members of household
  • Adjustment to school and community
  • Age and sex of child
  • Parental use of excessive discipline or emotional abuse
  • Evidence of parental drug, alcohol or sex abuse

Factors determining who is the “primary caretaker include the parent who has responsibility for:

  • Bathing, grooming, and dressing
  • Planning and preparing meals
  • Buying clothes and doing laundry
  • Health care arrangements
  • Encouraging participation in extracurricular activities
  • Teaching of reading, writing, and math skills.


Usually, when a court establishes visitation rights for a noncustodial parent, it orders "reasonable" visitation. This leaves it to the parents to come up with a schedule of times and places. The idea is to give the parents some flexibility with regard to their schedules and the children's schedules. However, the parent with physical custody has more practical control over the dates, times, and duration of visits. There is no legal obligation to agree to any particular schedule; however, judges do notice of who is and who is not flexible. Being uncooperative can backfire when you need to ask the court for something in the future.

In order for the reasonable visitation approach to succeed, parents must cooperate and communicate frequently. Consequently, if you think that reasonable visitation will not work, it would be prudent to insist upon a fixed schedule and thereby save yourself time, frustration, and probably money. If you have agreed to reasonable visitation that is not working out, you can go back to court and request that the arrangement be altered. Fixed visitation is when the courts establishes a detailed visitation schedule, this includes the times and places for visitation with the noncustodial parent. This usually results because of antagonism between parents. This can be generous, but it does remove flexibility.