Custody Disputes

In today’s society, broken families are quite common. Fortunately, most parents in these situations are able to agree on custody and visitation arrangements with respect to their children. However, for those parents who are not able to agree, our court system is vested with the responsibility to make custody and visitation arrangements.

When decided by the courts, the result of most custody disputes is that one parent is awarded possession of the child, while the other parent is awarded periods of visitation. The parent who is awarded possession of the child is said to have primary physical custody. The parent who is granted visitation is properly said to have partial physical custody.

The parent who is granted partial physical custody is usually given possession of the child every other weekend. This partial physical custody period usually extends for approximately forty-eight hours, typically beginning Friday in the late afternoon or evening, and ending Sunday evening. This parent is also usually granted partial physical custody every other holiday, as well as an extended period of partial physical custody during the child’s summer vacation. Occasionally, additional periods of partial physical custody are also awarded, such as a weeknight each week or every other week.

Importantly, physical custody should not be confused with legal custody. The term physical custody is used to define when each parent will get possession of the child. The term legal custody, on the other hand, is used to define each parent’s involvement in significant decisions in the child’s life. These decisions include matters such as extraordinary medical and educational decisions. The courts typically grant parents shared legal custody, which simply means that both parents have equal input regarding these types of decisions.

In those cases where a court must decide physical custody issues, the law instructs the court to hear all relevant facts, before making a decision based upon what the court believes to be in the child’s best interest.

Procedurally, if a parent must resort to the court system, the parent must file formal custody papers requesting the assistance of the court. After these papers are filed, a conference is scheduled before a court appointed custody conciliator. Both parents are required to attend this conciliation conference.

The purpose of this conciliation conference is to encourage discussion between the parents in an effort to resolve the matter without the need for a formal court hearing. If an agreement can be reached, the custody conciliator will place this agreement in writing and it will become an order of court.

In the event an agreement cannot be reached, a temporary decision will most likely be entered by the custody conciliator and further court proceedings, including a hearing, may ultimately be held.

If a hearing is needed, the court will receive testimony from both parents, and from other witnesses who may be helpful to the conciliator in reaching a decision.

If the court believes that the child has adequate maturity, the judge may also speak to the child, with the parents’ attorneys, but not the parents, being present when the child speaks to the judge.