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Making custody decisions is always the most painful part of divorcing. Being clear about your options from the start may make tough decisions easier.

Types of Child Custody

  • Legal Versus Physical Custody

Legal custody is the right to make decisions about your child, including:

  • Education
  • Religion
  • Medical issues
  • Discipline

Physical custody is having the child physically present with you.

  • Sole Versus Joint Custody

With sole custody, you alone have legal and physical custody of your child.

In a joint custody arrangement, you and your ex-spouse share legal and/or physical custody of the child. This might mean:

  • Having the child spend a significant amount of time with each parent
  • Spending weekdays with one parent and weekends with the other parent
  • The child spending most of his or her time with one parent and visiting with the other parent on a regular schedule
  • The parents moving in and out of a home where the children live (called “nesting”)

Parenting Agreements

Most states require divorcing parents to have a written plan outlining:

  • Where the child will live
  • Details of when the child will be with the noncustodial parent
  • Who will make parenting decisions and how
  • Where the child will be during holidays and school vacations
  • How vacation time with each parent will be determined

Factors In Determining Custody

If you and your spouse cannot agree on a custody arrangement, the court will likely make a decision based on the “best interests” of your child.

Factors the court will consider in deciding what’s in your child best interest include:

  • Who is currently and has been the primary care provider for the child
  • The mental and physical health of both parents
  • Special needs such as medical care and psychological counseling your child may have
  • The work schedules and availability of each parent
  • Where any siblings will live
  • The support systems (family and friends) of each parent
  • The preference of an older child, such as a teenager
  • The cooperation level between parents
  • Any history of domestic violence between the parents

What To Expect In Custody Litigation

Laws and procedures vary by state, but you should expect the following in a custody lawsuit:

  • One of the parents files for a divorce and asks the court to decide custody
  • Both parents file paperwork detailing each parent’s plan for where the child would live, visitation schedules, and how decisions concerning the child would be made
  • The court will likely appoint an investigator, sometimes called a “custody evaluator” or “guardian ad litem,” to interview the child, parents and potential witnesses such as family, friends and teachers, and make recommendations to the court regarding custody
  • The parents may be required to go to mediation, where a neutral third party will help the parents work out an agreement without going to court
  • The parents may be required to complete a short parenting course regarding parenting after a divorce
  • Attorneys for both parents may take “depositions” – formal questioning of witnesses under oath- to prepare for trial
  • Both parents will likely have to answer formal written questions under oath, called “interrogatories”
  • There will be a series of motions and hearings before the actual trial, to determine temporary custody and child support
  • At trial, the judge will hear from both parents and witnesses

The judge may make his or her decision at the conclusion of the trial, or may wait and send a written decision days or weeks after the trial has ended
Fighting over your child is expensive, time-consuming and emotionally damaging to everyone involved, especially your child. But knowing your rights as you begin the process make help you make better decisions.