Child Custody Factors to Consider

Each of you has the maturity to set aside the personal differences that gave rise to the divorce because your primary focus is on doing what's best for your children;

and There is no history within your relationship of domestic violence or other control issues that would make joint decision-making difficult or impossible. The very worst place for children to be is at the center of ongoing conflict between their parents.

Parents Working Together
Regardless of whether or not joint custody is appropriate for your case, please understand that parents can and should attempt to work together in most cases, even when one parent has sole custody. There are unusual situations in which the other parent is so harmful that your duty, as a good parent, is to protect your children from him or her. Fortunately, this is rare. In the vast majority of cases, children of divorce will do best when both parents take a positive and active role, and each encourages an ongoing, meaningful relationship with the other.

The Importance of Consulting an Attorney
There are many ways in which custody issues impact divorce.

To explore the various types of custody in adequate detail and evaluate which may be best for your children, consult with a competent domestic relations attorney.

Please keep in mind that custody should be done right the first time. If you enter into a custody agreement that is inappropriate, or if the court is presented with inadequate information upon which to enter orders, the impact on your children can be negative. Even so, once custody orders are entered, they can be extremely difficult, and in some cases impossible, to modify.

This is true regardless of whether those orders were the result of negotiated settlement or litigation.

You could end up in court (or back in court if the case was initially decided by a judge) attempting to re-litigate issues you thought were settled. Worse yet, you might be unable to convince the court to change custody and visitation orders that harm your children.

Therefore, it is essential to focus from the outset on obtaining custody orders that best serve their needs.

Children are Priceless

Attorneys are expensive but children are priceless.

Even if you and your spouse are in agreement about custody and visitation, I recommend you consult with a competent domestic relations attorney before making any important decisions.

Temporary Custody
"De facto" (means "in fact") custody refers to who actually has custody of the child at this time. This can be different from "court ordered custody". In order to formalize custody before you begin litigation, you will need to file for temporary custody. Temporary custody will be based on the "best interests" of the child standard. It is not an "initial" award of custody. Instead it is temporary custody while you wait for the court to hold a hearing.

Sole Custody
- Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.

Split Custody
- Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.

Joint Custody
- Joint Custody is actually broken down into three categories:

Joint Legal
Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence.
Shared Physical
In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent.
and
Combination
Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.

The court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement.

Other factors include:

willingness to share custody;
fitness;
child's relationships with parents;
child's preference;
ability to stabilize child's school and social life;
closeness to parent's homes (primarily a factor during the school year);
employment considerations (e.g. long hours, extensive travel, etc.);
age and number of children;
financial status;
benefit to parent.

Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs.

Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits.

This list is not meant to be complete and the court will hear anything that they believe to be relevant.

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