Child Custody & Visitation

How does the court decide custodial timeshare between parents during a contested child custody matter?

Prior to filing a motion seeking custody orders in court, parties should explore whether they can reach an agreement outside of court by working with a private co-parenting mediator. This method of custody resolution lets the parties focus their efforts to address specific parenting decisions that the court simply doesn't have time to address and lets the parties reach agreements about their children. This framework can also help you identify and reach resolution on co-parenting issues which you haven't identified yet, but will likely come up in the future, thereby avoiding repeat visits to court (or the private co-parenting mediator). We have our clients work with some of the best co-parenting mediators in the field.

However, co-parenting mediation isn't right for every family and litigation may be required. If litigating the issue of child custody, the process requires that a motion be filed by one party identifying the parenting issues to be resolved. Then, the other party files a responsive declaration addressing those issues (and any of their own parenting issues). Prior to, or on the day of, the hearing on the matter, the parties meet with staff from Family Court Services (this is generally a person with a background in child development rather than law) who works to help the parties reach agreements on the contested custody issues. While this process is free (unlike a private co-parenting mediator), given court resources and caseloads, parents generally have one brief session with a staff person at Family Court Services and address only the most important contested custody issues. Private co-parenting mediation lets parents address all important co-parenting issues during as many sessions as recommended by the co-parenting mediator and agreed to by the parties.

When reaching agreement isn’t possible, Family Court Services may make recommendations to the court, or it may be up to the judicial officer to make orders without input from Family Court Services. If you’re unsure how your county’s Family Court Services department works in this regard, we will gladly explain it to you during your consultation.

After the parties have completed the process with the Family Court Services staff, they have their hearing - often the same day. If recommendations resolve an issue, parties may choose to simply agree to those recommendations before or at their hearing. In other instances, when parties cannot reach agreement, the court must make decisions. Often the courts rely heavily on observations and recommendations that may have been made by Family Court Services, but most judges will also take into account any arguments made by counsel or a party at a hearing prior to issuing custody orders.

Do I need an attorney for help with a child custody matter?

Having an attorney by your side can dramatically improve the outcome of your contested custody matter. We know what issues the court can address and how to frame the relevant legal arguments. We are also highly skilled at litigating such issues when needed.

While parties can represent themselves in court at custody hearings, we have found that fewer custodial issues get resolved that way. Often the self-represented party doesn't know what issues to raise, how to raise them, nor how to best frame them for an optimal outcome.

How is legal custody different from physical custody?

Legal custody refers to parental authority regarding issues such as educational and medical decisions. Generally courts order joint legal custody, but that is not always the case and such a determination is always based on the facts of your particular matter. 

Physical custody, on the other hand, refers to issues regarding parental timeshare and other co-parenting issues that have been raised.

Does custody always go to just one parent? What are some differences between sole and joint legal custody and physical custody?

Most orders related to legal custody are for joint legal custody rather than sole legal custody. However, the court can and will order sole legal custody in certain circumstances, such as cases involving domestic violence, or cases where the parents' ability to co-parent is so ineffectual that the children are suffering as a result.

The legal consequences of joint physical custody compared to sole physical custody are few. Currently, the court places more emphasis on “timeshare” rather than whether the parties have sole or joint physical custody. 

Based on the facts of your particular case, your attorney can give you insight on the most likely outcome when legal or physical custody is contested.

What if my ex and I are able to reach a private custody agreement? Does a court have to decide our visitation schedule, or can we make the schedule ourselves?

Parents are always encouraged to work directly with one another to reach parenting agreements - the court prefers this, as parents know their children best and usually understand what is in their children’s best interests. Agreements made between parents on custody issues can be reduced to an enforceable court order. 

Which parent is more likely to be awarded sole custody?

The law is gender-blind when it comes to rendering custody (or any other family law) decisions. While parents can perceive a bias, the court's guiding principle is to determine an outcome that represents the best interests of the child.

Can anyone other than a parent get custody of a child?

Yes, in some situations grandparents will have visitation rights when there is an underlying legal proceeding underway that involves custody. At times, others can obtain custody orders as well. By reviewing your facts and goals with one of our attorneys, you can get more input on the possibilities of a non-parent obtaining custody orders.

If a parent loses custody, can it be regained? Is it possible to change or modify child custody orders?

Courts always have the jurisdiction to modify child custody orders until a child is 18 (or emancipated). Determining whether a party's custody orders can be modified is based on the types of orders in effect, any changed circumstances, and what's in the child's best interests.