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Child custody orders may be given to both parents, one parent, and in some cases non-parents. There are two types of child custody orders: physical and legal. The parent who lives with the child has physical custody. The parent who has the authority to make significant life decisions, such as a decision pertaining to the education, health, and welfare of the child, has legal custody of the child. The parent who does not have physical custody may be granted visitation rights, the right to visit the child. There are many ways the court may grant custody. For instance, parents may share both physical and legal custody; one parent may have sole physical and sole legal custody; one parent may have sole physical custody and the other parent may have sole legal custody.

The courts make child custody decisions based on what is in the best interest of the child. In deciding what is in the best interest of the child, courts look at factors:


  • Health, safety, and welfare of the child
  • Stability and continuity of the child is one of these most important factors.
  • Any history of abuse
  • Nature and amount of contact with both parents
  • Habitual and continuous use of alcohol and illegal drugs
  • Frequent and continuing contact with both parents
  • encourage parents to share
  • Wishes of the child, if the child is of sufficient age and capacity to reason so as to form an intelligent preference.
  • If a parent moves out of the family home, the court will not consider the relocation as a factor if the move was for a short period of time, the parent showed an interest in having custody or visitation, the parent makes reasonable efforts to have regular contact with the child, and the parent’s behavior shows no intent to abandon or the parent moved because of actual or threaten acts of domestic violence.

Parents may agree on custody arrangements:

Courts encourage parents to establish a custody agreement. Courts still must approve or disapprove the agreement based on what is in the best interest of the child. If parents cannot reach an agreement, courts require the parents to attend mediation.


Mediation is mandatory when parents cannot reach an agreement pertaining to custody and visitation issues of a divorce. Although, attorneys are normally not allowed to participate, they are allowed to prepare clients prior to mediation. Some clients feel more confident being prepared and knowing what might occur during the mediation session. If the parties fail to reach an agreement subsequent to mediation, then courts will hear the issues and decide the matter for the parties.

Child Custody Evaluation

A child custody evaluation is an assessment of the children and parents that the courts may use when making child custody or child visitation orders when there is a dispute among the parents. An evaluation may consist of interviews, psychological exams, and analysis of the children, and perhaps the parents.

  • The court has the ability to deny a parent’s request for an evaluation.
  • Parents may be liable for the cost of the evaluation.

Guardian ad litem

The court may appoint a guardian to represent the best interest of the child.

Unmarried Parents

The Uniform Parentage Act is employed to create a legal parent-child relationship between a child and single parent. Once this relationship is created, the court has the ability to make orders for child support, child custody and/or visitation, reimbursement for birth expenses. This relationship also covers governmental benefits and inheritance. The uniform parentage act may be used to established parentage for singles, same sex couples, and those using assisted reproduction.

Grandparents Visitation Rights

Courts may grant grandparents visitation rights to visit a grandchild, including grandchildren who have adopted, if doing so is in the best interest of the child and if other requirements are met:

  • Parent is deceased, parents are divorced, or parents are permanently separated.
  • There is an established relationship between the grandparents and the child

If both parents oppose the grandparents to have visitation rights, then courts presume that lack of visitation by the grandparents is in the best interest of the child. In order for grandparents to obtain visitation rights, when both parents oppose it, they must overcome this presumption by proving that such visitation is in the best interest of the child.

Changing Custody or Visitation:

Subsequent to a child custody or visitation order, parents generally are allowed to make changes. If parents are not in agreement with the proposed change, then the parents could be required to attend mediation.

© 2004 The Law Offices of Rosanna L. Chenette

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