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Physical Custody

A family break-up involving minor children is difficult.  Each parent needs to maintain his or her relationship with the children.  Child custody is a complex issue and you should consult with an experienced family attorney in making decisions on child custody.

The following general information is provided understand and anticipate the problems and challenges related to child custody that you may face as you move forward with your case.

Initially, understand the distinction between legal custody and physical custody.  Legal custody refers to the right to make decisions about your child’s life.  Physical custody refers to where your children will actually live.

Physical custody may either be “shared” or “primary.”  Unless the parents share equally in the living arrangements on a 50/50 basis, one parent will be awarded primary custody.  The parent who is not awarded primary custody may have as little time as one weekend a month or as much as three days every week.  The time-sharing is depending on many circumstances unique to each family.

Although each parent likely will desire to be the primary custodian, it is essential to ensure the children have a “home-like” environment in both residences.  In fact, lack of a suitable home environment can significantly affect that parent‘s time with the children.

If the parents agree on physical custody of the child, the court is likely to approve that agreement as long as it fits within “the best interests of the children” guidelines.

When parents do not agree, the case is considered “contested” and the court determines custody. The court considers all relevant factors and will typically enlist the assistance of others in the determination of the best interests of the children.  These outside resources including Family Court Clinic, private experts and court appointed Guardians ad Litem (GAL) often assist the courts in the child custody evaluation.

The gender of the parent is not a determining factor. Further, there is a presumption that some form of joint custody is in the best interests of the children but that does not imply an equal division.  Issues such as siblings in the family, family support structures, school and community involvement, allegations of abuse, and the mental and physical health of all the individuals among other issues are considered in the custody and time-sharing decision.

The wishes of the child may also be a consideration.  As the child grows older, the courts will begin to entertain the child‘s wishes.  Once the child reaches 14 years or older, the child wishes will come to dominate the decisions of the court in the absence of very good reasons for ignoring those wishes.

Child custody and time-sharing can be the most highly contested portion of a divorce.  These disputes can go on for years.  Far too many parents fail to recognize the fact that their inability to come to an agreement on their own takes the most important decisions concerning their children‘s welfare out of their hands and places them in the hands of a judge.

This should be avoided if at all possible.  It is not only emotionally stressful on the parents and the children, it is extremely costly in terms of attorneys fees and other legal costs.  It is highly advisable to seek the counsel of an experienced divorce and family law attorney before heading down the road of high conflict custody.

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