How to Get Custody and Visitation Orders

The Basics

As you prepare to submit your custody and visitation orders to the court, remember that a well thought out parenting plan – created either in agreement with the party or on your own – can significantly streamline and facilitate the custody/visitation process.  Once you have determined what custody and visitation orders will work best for you and your children, the next step is to file the correct paperwork and begin the custody/visitation order process.

Child Custody

There are two types of custody: legal and physical.  Legal custody allows one or both parents to make all important decisions regarding the children’s healthcare, education, and welfare.  Legal custody can be either joint (allowing both parents to equal say in all important decisions) or sole (one parent has sole right and responsibility regarding the child’s health care, education, and welfare).  Legal custody allows the parent or parents to decide where the child will attend school (or child care) and whether the child can participate in religious or extracurricular activities. A parent with legal custody will have final say regarding doctors, psychiatrists, and other health care professionals.  Legal custody also allows one or both parents final say on travel, summer camp, and the child’s primary residence.

Though parents may share legal custody, complete agreement on all decisions is not required. With shared legal custody, either parent can make their own decision regarding the health, education and welfare of the child without consulting with the other parent.  Nevertheless, in order to avoid additional litigation and appearance in front of the judge, it is in both parties’ best interest to keep the lines of communication open and make any decisions in a considered and thoughtful manner.

Like legal custody, physical custody can also be divided into sole and joint custody.  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.

Visitation Orders

Child visitation orders can be as diverse and complex, depending on the needs and wishes of all parties involved.  In general, the courts will aim to craft a visitation schedule that is reasonable and equitable, allowing the noncustodial parent to sustain important parental bonds and foster the child-parent relationship.  Visitation orders will address regular visitation (weekends, summer vacation) and special circumstances including holidays, family events, and school events.  Visitation orders may also determine the parent’s participation in field trips, sporting events, and other extracurricular occurrences.

In cases where the child’s health or safety is at issue, the court may order supervised visitation.  In such instances, the noncustodial parent will be allowed access to the child only under very specific circumstance monitored by another party.  The other parent, another family member, or even a court appointed guardian may be ordered.  In extreme cases, the courts may determine that visitation is not appropriate, and no visitation orders will be granted.  In these extreme situations, visitation will be denied if there is clear evidence that the child’s immediate health and safety are endangered.

How to Get Custody and Visitation Orders

A parenting plan is always the best bet when it comes to requesting child custody and visitation orders. The best parenting plan is one that prioritizes your child’s interests and wellbeing, while also accounting for evolving needs and future expectations.  You should explore developing a parenting plan, either alone or in cooperation with the other parent.  A parenting plan can map out a course of action that will allow you and the children of the relationship to better cope with the separation.  In some cases, mediation can help parents quickly develop a mutually agreed upon parenting plan which can ease both parties and children during subsequent court proceedings.

When attempting to work out a parenting schedule, aim for cooperation and calm.  Try to remove any feelings of animosity or defensiveness when communicating with the other parent, and try to keep an open mind.  While you may not be able to agree on an ideal parenting plan, if you keep the lines of communication open you will have a better chance of coming to a decision that is acceptable to both parents while also helping the child cope with separated parents.

The Courts, Family Law Services, and Mediation

If you and the other parent cannot come to an agreement regarding child custody and visitation, the judge may direct you to mediation.  Family courts often provide special services designed to facilitate an arrangement between parents who have had difficulty independently deciding on custody and visitation orders.  In certain instances, the judge may decide that an independent custody evaluation is needed, and some courts even allow a parent to request an evaluation.  In particularly contentious situations, the judge may even appoint independent legal representation for the children in order to ensure that the child’s best interests are being represented.

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