Custody and Visitation FAQ

Do we always have to agree?

The simple answer is no.  Both parents have an equal say when it comes to requesting child custody and visitation issues.  Additionally, joint legal and/or physical custody gives both parents the right to make decisions about the child health, education, and well being, sometimes independently and without permission from the other parent.  Nevertheless, just because you can make decisions without having to consult the other parents doesn’t mean that acting alone is always the best decision.  Cooperation is key, and the best way to avoid problems (and end up going back to court) is to keep the lines of communication open and attempt to cooperate when it comes to decisions that impact the child.

How does joint physical custody work?

Joint custody does not require that the child spend equal time with each parent, though if the child spends a majority time with one parent the court may name that parent the “primary custodial parent.” Joint custody requires a significant commitment to cooperation and communication between both parents.  If your relationship is relatively amicable, and you feel capable of sustaining frequent interactions with your former spouse, then joint physical custody can be the right fit.  If there is any chance that regularly interacting with the other parent will cause stress or trauma to you or the child, it may be preferable to seek sole physical custody with visitation orders.

What happens if I don’t respond to paperwork?

Even if you don’t respond to paperwork you received from the other parent, you should still make every attempt to make an appearance on your scheduled court date.  At your appearance, you may be required to request a time extension in order to allow you to file a response, and the judge may ask you to explain what prevented you from initially filing the response paperwork.  If you do not file a response and fail to appear on your scheduled court date, a summary judgment may be entered that could include binding custody and visitation orders.

How long does mediation take?

The length of time required to complete mediation varied depending on the individual court regulations and procedures.  Some courts may only require one short appointment, while others may have a full schedule that includes several meetings of different length.  Ultimately, the resources available and the complexity of your custody/visitation needs will determine the duration and appointment length of mediation.

Can one parent move away with the child/children?

Whether or not you or the other parent may relocate with the minor child depends upon the type of custody arrangement ordered by the court.  Though the law in this area is complicated and constantly changing, generally speaking the parent who has sole physical or primary physical custody can relocate with the children unless the other parent can prove that such a move would put the child in danger or cause some other serious harm to the child.  If the parents have joint physical custody, then the parent wanting to relocate must prove to the court that moving is in the best interest of the child.  Please keep in mind that the courts will rely on actual custody and visitation orders when deciding whether relocation with the child will be approved – a parenting agreement that has not been ratified and ordered by the court may not be enough to ensure that you have a say on the primary residence of your child.  If you are concerned about relocating with your child or that the other parent will relocate, you should contact a lawyer to make sure any parenting plan protects your parental rights and assures access to your child.

What if the parents live in different states or countries?

Different states have different rules and regulations regarding child custody and visitation.  Generally speaking, once one state has made custody and visitation orders, no other state can modify that initial decision.  That being said, all the states of the United States follow the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which sets standards for how and when a court may make child custody and visitation orders.  You can learn more about the UCCJEA here.  If one of the parents lives in another country, the issues involving custody and visitation are too complex and should be handled by an attorney.

How can I stay close to my children if they move away?

Even when you are not in close physical proximity to your child, there are still several ways you can stay connected, including regular phone calls, emails, and even regular “snail mail.”  If a child relocates several hours or states away from your primary residence, you can still request a visitation order that allows you to spend a portion of each calendar year with your child.  Visitation can be adjusted to allow the child to stay with the non-primary custodial parent on holidays and during spring and summer break.  As in all things involving shared custody and visitation, flexibility and communication is key to ensuring you can preserve a close, healthy parental relationship with your child.

Are my court records public?

Generally speaking all court orders and files are public record.  The public, including court officials and the general public, can request to see any case file at any time.  Although most court documents are not private, the court allows for confidentiality in adoption cases, juvenile matters, and custody evaluations and recommendations.  Other court records can also be marked confidential at the court’s discretion if they contain information that is highly sensitive, including financial materials and other volatile documents.

Is child support related to custody and visitation?

In many (but not all) states, the judge will determine the amount of child support based on the amount of time the child spends with each parent.  When joint custody is shared equally between both parties, each parent’s income can also impact the amount of child support ordered.  Ultimately, the judge is weighing many factors when making his decision, including the lifestyle the child is accustomed to, and the each parents’ current and potential earnings.

While custodial time does impact child support, it is important to remember that you cannot refuse visitation or custodial time if the other parent owes or is not paying child support.  You also cannot stop paying child support if the other parent makes it difficult or impossible for you to see your child. The courts do not allow for punitive custody arrangements, and neither party can use child support to influence or deny the other parent access to the child.

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