Understandably, parents may fear the process of determining child custody. The reality, however, is that most parents are able to reach equitable agreements with the assistance of their attorneys and/or through county or private mediation services.
The Two Types of Custody
There are two types of custody to which the court refers: legal custody and physical custody. In the vast majority of cases, the parents will share joint legal custody, which means that they both have the right and the responsibility to make decisions relating to the health, education, and welfare of their children. In certain cases, joint legal custody may be denied in favor of sole legal custody to one parent (including cases where a parent may be a flight risk with the children or where a parent has an issue with substance abuse). Joint physical custody means that each of the parents has significant periods of physical custody; it does not necessarily mean that the parties share the children equally. Joint physical custody is shared in a way that assures the children frequent and continuous contact with both parents. Even where the parents share the children equally, there are many possible schedule configurations for doing so and which schedule is in their best interest relies on several factors including their age, development, personality, and the family history.
In the event that the parents are at an impasse regarding custody of their children, they must first attempt to settle the dispute in mediation. Prior to going to court, county mediators or private custody mediators meet with both parents (usually together and without the children present). The mediators try to help the parents come to an agreement. After one to two hours of mediation, if the parents are unsuccessful in mediation, in most counties, the mediator presents a written recommendation to the court as to which custody schedule he or she believes is in the child’s best interest. Prior to making her decision, the judge reviews the mediator’s recommendation and allows the parties to make arguments in support of or in opposition to those recommendations. Furthermore, the court and the lawyers may question (cross-examine) the mediator regarding the statements made in the mediator’s report.
The “Best Interest” Standard
The “best interest” standard is relatively nebulous and often misunderstood. There is no simple definition, and the best way to understand the standard is to evaluate your family’s history. For example, if one parent has not actively participated in the child’s upbringing (one parent may have traveled for work extensively in the past five years) such that the child has spent significantly more time with one parent than the other, the court may be less likely to award a shared custody plan. In this example, the court may find that it is in the child’s best interest to reside with the parent who has historically provided most of the child’s care, awarding visitation to the other parent.
Once the court makes a final determination, custody orders may be modified only upon a showing of a substantial change in circumstance. This will place the burden of modifying the orders on the parent who does not receive physical custody because that parent will have to prove a substantial change in circumstance in order to change them. As a result, it is extremely important that the custody litigant be prepared to present law and facts in support of his or her request for custody during the initial custody phase.