Child custody is one of the most emotional areas of family law. Custody can be amicably agreed upon and resolved between the parties or it can be determined by the Court. If custody is determined by the Court, the standard the Court looks at is the “best interest of the children.” The best interest standard is comprised of many factors including the wishes of the parents, wishes of the children, and mental stability of the parents.
If the parties are not able to agree on the issue of custody, the Court will usually appoint a Guardian ad Litem (GAL) or Child Representative to the case. This person is an attorney that represents the children and determines their best interests. This individual will do an investigation by speaking to both parents and the children (if they are old enough). The GAL or Child Representative will then report back to the Court and make a suggestion as to custody. It is important to have an attorney throughout this process so that the GAL or Child Representative is fully updated on the case and the situation in each parent’s home.
It is important to note that there are three main types of custody:
Sole Custody: Sole custody means that one parent serves as the residential parent where the child will primarily reside. The other parent would be the non-residential parent and have visitation rights. The residential parent is entitled to make all decisions regarding health care, religion, and education without consulting the non-residential parent. The non-residential parent would be obligated to pay the residential parent child support.
Joint Custody: Joint custody is similar to sole custody in that one parent serves as residential parent and the other parent serves as non-residential parent with visitation rights. However, in joint custody situations, the residential parent must consult the non-residential parent when deciding issues such as health care, religion, and education. The parties must work together and agree upon issues prior to them being implemented. The non-residential parent is obligated to pay child support in joint custody situations as well.
Shared Custody: Shared custody is only awarded in very limited circumstances. Shared custody occurs when each parent spends an equal amount of time with the children and both serve as residential parent. In most shared custody situations, neither parent would pay child support but instead would be responsible for the children when they are in that parent’s care. Shared custody is usually only awarded when the parents agree to this situation, when they reside in close proximity to each other, and when they can clearly raise their children together in an amicable environment.