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4 Common Child Custody Questions & Concerns When Facing Divorce

November 3, 2013 by edhecht

The first concern of any loving parent facing a divorce is what will happen to my kids? Custody can be the most contentious aspect of a divorce.

However, if the parents consider the needs and best interests of the children, a custody arrangement and parenting plan can usually be negotiated without having to resort to a courtroom fight. It is always much better if you and your spouse can amicably decide when your children will spend time with you and when they will spend time with their other parent. Resolving issues in a courtroom should only be used as a last resort when other forms of dispute resolution, such as mediation and perhaps arbitration, have been tried and failed.

The most important thing to remember about Child Custody is this: Don't make your kids a battleground or leverage tool in your divorce. No matter what your issues are, try to focus on what is best for the children.

Both of you still have the responsibility of raising your children to adulthood and getting them there emotionally intact, regardless of any animosity you may harbor toward their other parent. Nothing else affects the mental and emotional well-being of a child post-divorce (or post-relationship) more than the ability of you and their other parent to cooperatively work together and continue raising them to adulthood.

As a single dad who went through a divorce when my children were very young, I speak from personal experience in this area. I also realize that tensions exist and sometimes it can be very hard, at least initially, to co-parent with your ex.

With that in mind, let's talk about some common custody concerns.

1) What is the difference between legal and physical custody?

Physical custody refers to who the child will live with most of the time, and which parent ultimately has responsibility for the care of the child. That parent typically receives child support payments from the other parent, and the child will usually attend the school assigned to that neighborhood.

Legal custody refers to decision-making for the child, typically in the areas of healthcare, education, religion, and extracurricular activities. In most divorces, one parent will be designated the primary physical custodian, with the other parent having regular visitation with the child. Legal custody is usually split 50/50 between the parents, with each parent having final decision making in one or more of the above-mentioned areas.

If the parents cannot come to agreement on legal and physical custody on their own, the court will do it for them. It is very common for the court to order joint legal custody (decision-making), but far less common for the court to order joint (50/50) physical custody. However, if the parties agree to it, then the court is likely to approve it.

2) Which parent will get primary physical custody of the children?

Years ago, there was a presumption in society and in the courts that children should live with their mother after a divorce, and that's how most custody arrangements looked. Dad got the kids every other weekend and took them to dinner one evening per week. There's no longer a presumption in favor of one parent or another.

The court will look at the best interests of the children, which includes many factors. In very contentious custody battles, the courts may also consider which parent is most likely to be the more cooperative co-parent, and that may sway the court toward awarding them primary physical custody.

3) If I am late making a child support payment can my ex keep me from seeing my children?

In short, no. A parent's responsibility to make child support payments is a separate issue from their right to see the child; withholding visitation because of late or delinquent payments is not allowed and will subject that parent to a contempt action. The court recognizes the child's need and right to have a relationship with both parents and will make its own determination regarding whether the late payment or non-payment of child support is willful or non-willful, and will deal with that parent accordingly. The court will not be likely to interfere with the relationship between a parent and their child over a financial issue between the two parents.

4) What happens if my ex or I relocate after our divorce?

When a parent who is sharing custody of a child has to relocate, a change in custody or in the visitation schedule may be ordered by the court if it is deemed to be in the child's best interests. There is no longer an automatic right of the custodial parent to retain custody and relocate with the child if they move. This means that if the parent with custody of the child must relocate there is no guarantee that they can take the child with them.

Most divorce settlement agreements contain provisions that anticipate a possible relocation and stipulate that a move beyond a certain distance (typically 30 or 50 miles) shall be considered a material change of circumstances, warranting a review of custody and enabling the court to intervene if the parents cannot come to an agreement on their own.

Disclaimer: This article and the information and "4 Common Child Custody Questions & Concerns When Facing Divorce" discussed herein are neither advice nor opinion on specific legal questions, but are furnished only as general information on areas of interest. The applicability of the legal principles discussed in this article may differ widely in specific situations. Therefore, the information contained in this article cannot be construed as individual legal advice and no attorney-client relationship shall be construed or created by this article.

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