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Child Custody and Visitation

In any situation where child custody is at issue, a number of key questions are raised. If you’re going through a divorce, you’ll want to know whether your child will live primarily with you, and if not, whether will you’ll be able to make important decisions as to how your child will be raised. If you’re a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility.

Answers to these questions are at the root of most custody situations, but for parents and others without significant experience with child custody and the legal system, a fundamental concern is: How are child custody decisions made? Following is a brief discussion in response to that question.

Divorce and Child Custody 

If you’re a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitations issues are resolved in a divorce. In general, like all aspects of a divorce — including property division, child support, financial division, and spousal support (alimony) – child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court.

Unmarried Parents and Child Custody 

When a child’s parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he can take steps to secure some form of custody and visitation rights.

For unmarried parents involved in a custody dispute, options for the custody decision are largely the same as those for divorcing couples — child custody and visitation will be resolved either through agreement between the child’s parents, or by a family court judge’s decision. But, unlike divorcing couples, unmarried parents will not need to resolve any potentially complicated (and contentious) divorce-related issues such as division of property and payment of spousal support, so the decision-making process is focused almost exclusively on child custody. For this reason, resolution of custody and visitation may be more simplified for unmarried parents.

If unmarried parents do not reach a child custody and visitation agreement out-of-court, the matter will go before a family court judge for resolution.

Non-Parental Child Custody Decisions

In some cases, people other than a child’s parents may wish to obtain custody, including grandparents, aunts, uncles, and close family friends. Some states label such a situation as “non-parental” or “third-party” custody.

Whatever the label, most states have specific procedures that must be followed by people seeking non-parental custody. The process usually begins when the person seeking custody files a document called a “non-parental custody petition” (or similarly-titled petition) with the court, which sets out the person’s relationship to the child, the status of the child’s parents (living, dead, whereabouts unknown), and the reasons the person is seeking (and should be granted) custody. Usually, a copy of this petition must also be delivered to the child’s parents, if they are living and their whereabouts are known.