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Child Custody

FOUR TYPES OF PHYSICAL CUSTODY: • Primary • Partial • Visitation • Shared

Primary physical custody refers to the party with whom the child primarily resides.
Partial physical custody refers to the right of the other party to take the child away from the primary custodian (usually for nights, weekends, vacations, etc.).

Visitation is the right of a parent to visit (usually supervised) with the child at the child’s primary residence or another location, but does not include the right to remove the child from the primary custodian’s control. Shared custody is when the parents alternate physical custody of the children to assure regular, frequent contact with both parents. Legal custody is most often shared between the parents, as both parents should consult before making major decisions on behalf of the child. It is rare that one
parent is granted sole legal custody of a child.

DO I HAVE TO CONSULT THE NON-CUSTODIAL PARENT BEFORE I MAKE DECISIONS?

When making major decisions on behalf of the child, the non-custodial parent must be consulted if there is an order giving the parents shared legal custody of the child. Even if there is no custody order, the non-custodial parent should be consulted; major decisions should be made by the parents together. If the parents are unable to make a decision concerning a major issue, either parent may file a petition seeking an order from the court. Each parent is permitted to make normal day-to-day decisions on behalf of the child, while the child is in the parent’s physical custody.

CAN A NON-CUSTODIAL PARENT HAVE ACCESS TO THE CHILD’S RECORDS?

Each parent is entitled to have access to the child’s medical, dental, school and religious records. There is an exception in certain abuse cases when the child’s address needs to remain private.

IS THERE A RELATIONSHIP BETWEEN SEEING THE CHILDREN & PAYING SUPPORT?

Even if a parent is not complying with a support order, if there is a custody order allowing him/her to see the child, the parent must be permitted to exercise custody of the child. If there is a problem with the support, the parent should file a support complaint, a petition to modify, or a contempt petition. If a person who is obligated to pay support is not seeing a child, the person must still pay support. If there is a problem with the custody, the parent should file a custody complaint, a petition to modify or a petition for contempt.

WHEN IS A CUSTODY ORDER MODIFIABLE?

A custody order is modifiable when a change in the custody arrangement is in the best interest of the child. There need not be a specific change of circumstances. The parent seeking to modify the order must show why the present order is no longer in the child’s best interest.

WHAT IF THE CUSTODIAL PARENT WANTS TO MOVE THE CHILD FROM THE AREA?

If there is a custody order in effect, the parent seeking to move with the child must file a petition for permission to relocate the child and, if the terms of the custody order must change, a petition to modify custody. If there is no custody order in effect, the parent with whom the child lives should notify the other parent within a reasonable amount of time of the desire to move. If the noncustodial parent objects, the custodial parent will have to file a complaint for custody and a petition to relocate. Before the child is permitted to move, a hearing must be held as to whether the move is in the child’s best interest. The burden of proof is on the parent seeking to move the child. When
deciding whether the move is in the child’s best interest, the court will consider the reasons for the move, the impact of the move on the child and the moving parent, the reasons why the other parent is objecting to the move, and the availability of adequate, alternate custody arrangements if the move is permitted. If the non-custodial parent does not consent to the move, he/she should file a petition seeking to prohibit the planned move of the custodial parent until after a hearing is held as to whether the move is in the child’s best interest.

WHERE SHOULD THE ACTION BE BROUGHT IF THE NON-CUSTODIAL PARENT AND I LIVE IN DIFFERENT STATES (OR COUNTIES)?

The action should be brought in the home state of the child. This is the state (or county) in which the child has lived for the preceding six months. There are exceptions:


  • • If it is in the child’s best interest that the action be brought in another state (or county) and the child and at least one parent have significant contacts within that state;
  • • If the child has been abandoned;
  • • If it is necessary to protect the child from mistreatment abuse or neglect.
    If the child was absent from the custodial parent’s home state because someone wrongfully removed or kept the child, the custody action can still be brought in the custodial parent’s home state.

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