Child custody is often litigated in divorces. The family court will usually grant physical custody to one parent for most of the time and give ample visitation to the non-custodial parent. It is possible to have joint physical custody with an equal split of time between parents. But, parents should give serious consideration to the effects on young children, with moving back and forth and the disruption of routine, friendships, environment and stressors of constant transitions.
Steps to Take When Seeking Sole Physical Custody
For parents facing a custody battle, there are steps to follow to maximize chances of obtaining sole physical custody:
- Know the difference between physical and legal custody. Physical custody refers to time spent with the child and where the child resides. Legal custody refers to a parent’s right to make decisions (legal, medical, educational, religious, etc.) for the child to meet the child’s needs in his upbringing. Often, parents are granted joint legal custody, even if one parent is awarded sole physical custody. Judges in family court are loath to take a parent out of the decision-making process for their child, barring egregious unfitness.
- Seek physical custody during your divorce case. Part of the process of filing for a divorce requires parents to answer the question of which parent(s) will assume post-divorce custody. Because of the adversarial nature of divorce, parents may not come to agreement on child custody. Both parents may file for sole physical custody. It is up to the family court judge to make a determination of which parent will be awarded sole (physical) custody. To apply for custody, a parent need only check a box on divorce forms that addresses custody. This begins the process that will play out during litigation.
- Collect evidence for custody evidentiary hearing. Both parents will be questioned at a hearing on why they believe they should be awarded sole physical custody. Evidence will be necessary to help establish why you should prevail in your custody claim. Stay-at-home parents are generally favored in custody contests (95 percent of the time) to maintain the routine and status quo for young children with caretaking. If there is an issue of unfitness due to drugs, alcohol, neglect or child abuse, the situation could differ. The burden of proof to establish parental unfitness is high: Unfit behavior must be ongoing for a long time and put children in danger.
- Present your case at the hearing. You or your counsel will need to address in argument why you should be awarded sole physical custody and why the other parent should not. If children are above a certain age (typically 13), the judge may ask their preference, but this is not a lead determining factor due to the emotional, unpredictable and easily biased view of children.