For anyone who has never been through it, a child custody battle seems like an dreadful ordeal, and I personally would not wish it on any one.  Unfortunately, with a divorce that involves children there is no way to avoid it.  The best approach is to be prepared, research the issue in its entirety, and be fair throughout the ordeal.  There is no reason to ask for more than joint (50:50) custody unless your children are truly in danger by living with their mother.  Many people, men and women, make the mistake of trying to get full custody just to punish the other.  Everybody suffers in this, but no one more than your kids.

To start out our coverage of child custody, I have put together a list of common questions with answers that have been agreed to by several child custody lawyers.  First, it is very important to note that child custody laws differ from state to state.  And the information that you find here works for most areas, but it is still very important that you check that your state has similar views on these issues.

What is the “True” Definition of Custody?

In short, “Custody” deals with the person who is responsible for providing for the children in the case that both parents do not live together anymore.  Which will be the case when you get a divorce.  But this also applies to parents who have never been married, in which case the mother generally has custody most of the time, with the father getting visitation rights.  That is a tradition that is hard to fight, but when the parents were married and taking care of the children under the same roof then there are more options available.

What is the Difference between “Physical Custody” and “Legal Custody”?

Physical custody is more straightforward and refers to the parent who has the child (or children) living with them on a regular basis.  There can be a situation of “joint physical custody” where both parents have the child living with them for an equal amount of time, and they are moved between each parent’s home on a regular basis.

Legal custody is what is awarded when a parent has the responsibility of making the major decisions on issues such as the child’s education, health, and overall well being.  There can be joint legal custody, but it is only recommended when the parents are able to get along, at least for the sake of their kids.

So, How is the Decision about Custody Made?

The ideal way that a decision is made is when the judge approves a plan that is presented and agreed upon by both parents.  But in the case that the parents are unable to come to a decision on their own, they will likely be ordered to speak with a mediator who is experienced in this matter.  In the worst case scenario, the parents cannot come up with an agreement by themselves or with the help of a mediator.  In this case, the judge will have the final say after hearing both sides of the story.  It is very important that you do not let it get to this point, because it is not only very hard on you (emotionally and financially), but it can be devastating to your kids.

Are your kids still allowed to see a parent who has not been awarded Physical Custody?

It truly depends on the situation, but commonly the parent who does not have physical custody is allowed certain visitation periods, which could range from a couple days a week to every other weekend to once a month.  Obviously, this depends heavily on your particular situation.  If there is a chance that a child may be in danger because of a history of abuse or if the parent in question cannot physically and/or financially take care of the child, then visitation could be seriously restricted.  Under the most extreme situations visitation will only be allowed if it is supervised.

What happens if the parent with custody won’t let the children visit the other parent?

If the parent who has been awarded physical custody makes the decision that the children will not be allowed to visit with the other parent, then that parent should file a contempt charge with the court.  When either parent does not abide by a court order that was issued during a divorce, they are guilty of contempt of court.  The judge could then issue sanctions against the offending parent in the form of fines or even jail time.  If it can be proven without a doubt that the parent has been doing this on purpose, then is could be used as grounds to change the child custody situation. But it is more likely that the judge will order counseling or mediation to work things out before he/she will even consider changing the custody agreement.

If the current custody plan is not working, can it be changed?

It is possible for the custody plan to be modified if both parents agree on the changes, draw up a new arrangement, and bring it before the judge, who is the only person that can make it official.  In the case that both parents acknowledge that something is working, but cannot not agree on a new custody plan, they may ask the judge to come up with the changes.  Whatever the judge decides, you can be certain that it is done with the child’s best interests in mind.  Getting a change to the child custody plan gets more difficult if the original arrangement has been working for an extended period, or if the child is already taken care of in his/her current situation.  So if you wish ask for a change in the custody arrangement, you’d better have some valid complaints and plenty of evidence to back it up.

Like I mentioned earlier, this is just the beginning to what will be a large selection of information on child custody.  It is by far one of the most important issues in a divorce, and it has implications for many years to come.  So if you are considering a divorce, or are already in progress, remember that it is not just about you and your soon-to-be ex-wife.  Your children are there too, and they should be a top priority for you throughout the entire divorce.

(Quick note: We will get into this more a little later, but you need to know that all divorce attorneys are not qualified to be child custody lawyers.  So be sure that when you talk to a lawyer for the first time, and you know that child custody will be an issue, make sure talk to them about it.  If they don’t appear to be very experienced, then it would be wise to look for an attorney elsewhere.)