Understanding Child Custody: Determination, Laws, and Visitation Rights

Child custody is one of the most important decisions made during a divorce or separation. Determining custody arrangements for a child can be a challenging process that impacts the child’s life significantly. This article provides an overview of child custody laws and considerations to keep in mind when establishing custody that is in the best interest of the child.

When parents separate, the court determines child custody based on what arrangement would be in the child’s best interests. This involves assigning decision-making authority and living arrangements for the child. There are two main types of child custody – physical custody and legal custody. Physical custody refers to where the child lives, while legal custody involves making major decisions about the child’s health, education, and welfare.

What is Child Custody?

Child custody determines which parent or guardian has the legal right to make major decisions about a minor child’s welfare and upbringing.

A child custody decision grants physical custody and/or legal custody rights to the parent or guardian. It also sets up a visitation schedule for the non-custodial parent.

Custody decisions are included in the divorce decree or legal separation court order. However, custody of a child can also be re-determined later through modification and enforcement actions.

Child Custody Law: An Overview

Child custody law in the U.S. aims to protect the welfare of minor children whose parents have divorced or separated.

States follow the uniform child custody jurisdiction and enforcement act (UCCJEA) to determine which state has jurisdiction, or the legal authority, to make the initial custody determination.

Jurisdictional rules prevent different courts from issuing conflicting orders. The state that made the original custody determination is also the only state that can modify it, with a few exceptions.

Once jurisdiction is decided, the court determines child custody based on the best interests of the child. The court examines factors like parent-child relationships, ability to provide stability, and the child’s own preferences.

Custody orders are legally binding; violating them can lead to contempt charges. The UCCJEA provides rules for enforcing a child custody determination across state lines.

How is Child Custody Determined?

Child custody disputes are resolved either through mutual agreement between the parents or by a judge in family court. The overriding standard used to determine custody is the best interest of the child.

If parents can’t decide on their own custody arrangement, they will go through a court process that may involve mediation, custody evaluations, and/or a full court hearing. During this process, the judge will consider various factors related to the child’s welfare to decide custody.

Some of the key factors courts may consider include:

  • The child’s relationship and bonding with each parent
  • The ability of each parent to provide food, clothing, medical care, and other basic necessities
  • The mental and physical health of each parent
  • Evidence of domestic violence or substance abuse by either parent
  • The child’s adjustment to home, school, and community
  • The willingness of each parent to foster a relationship between the child and other parent
  • Any prior agreement between the parents regarding custody
  • The child’s preferences, if the child is mature enough to express an opinion
  • The presence of siblings and the desirability of keeping them together
  • The level of conflict between the parents and their ability to cooperate and make joint decisions
  • The parents’ work schedules and ability to make suitable custody arrangements
  • Any other factors affecting the physical, emotional, mental, religious, and social needs of the child

While favoring arrangements that allow both parents to be actively involved in the child’s life, courts will ultimately select the custody scenario that is most likely to provide a stable, nurturing environment for the child’s optimal development.

Types of Child Custody Arrangements

There are two main types of child custody:

  • Physical custody – The right to have the child live with you and make day-to-day decisions during that time.
  • Legal custody – The right to make major life decisions about the child’s health, education, and welfare.

Joint custody gives both parents decision-making authority and parenting time. Sole custody grants full authority to one parent. The court determines the arrangement that serves the child’s interests.

Here are some common custody arrangements:

  • Joint physical custody – Child splits time living with each parent.
  • Joint legal custody – Both parents share decision-making.
  • Sole physical custody – Child lives primarily with one parent.
  • Sole legal custody – One parent makes major decisions.

Parents often combine arrangements, like one parent having sole physical custody while both share joint legal custody.

How Do Visitation Rights Work?

When one parent is granted sole physical custody, the other parent will typically receive visitation rights. This allows the non-custodial parent to spend time with the child.

A visitation schedule may include:

  • Weekends – The children stay with the non-custodial parent every other weekend or each weekend.
  • Weeknights – The children may have dinner visits or overnight stays one night per week with the other parent.
  • Holidays – Major holidays like Christmas and Thanksgiving are alternated annually or divided each year.
  • School breaks – Spring break, winter break, and summer vacation may be split or alternated.
  • Special occasions – Both parents may attend birthdays, recitals, sporting events, and other special activities.

The court will outline the visitation schedule and may require parents to exchange pertinent information about the children during transitions. Visitation can generally only be denied in extreme cases where the child’s safety or wellbeing is at risk. Otherwise, it’s assumed to be in the child’s best interest to have frequent contact with both parents.

Understanding Physical Custody

Physical custody of the child refers to the living arrangements and where the child primarily resides. Sole physical custody means the child lives primarily with one parent. The other parent typically has scheduled visitation rights. 

With joint physical custody, the child splits time between two homes. This can be 50/50 or split into a primary home and visitation schedule.

Split physical custody divides custody between multiple children. For example, the father has primary custody of one child while the mother has primary custody of the other.

The court orders the physical custody arrangement that provides the most stability and continuity for children. Frequent transitions between homes can cause emotional turmoil for kids.

Legal Custody: Rights and Responsibilities

Legal custody involves the right to make major decisions about a child’s welfare, medical care, education, extracurricular activities, and religious training.

A parent with legal custody can decide where the child attends school, consent to medical treatment, and choose or permit religious observances.

Joint legal custody allows both parents to actively participate in these decisions, even if the child lives primarily with just one parent. This is common when parents want to remain involved in the child’s upbringing.

Joint Custody: Pros and Cons

Joint custody has potential benefits but also requires high cooperation between parents.


  • Child has active involvement with both parents.
  • Reduces family court disputes over decisions.
  • Shared parenting responsibility.


  • Need to coordinate schedules and communicate frequently.
  • Conflict over decisions if parents disagree.
  • Can be impractical if parents live far apart.
  • May have more transitions between homes.

Judges often order joint legal custody and sole physical custody to one parent. This balances parental rights with providing stability for the child.

Sole Legal Custody: When and Why?

Courts may grant sole legal custody to one parent if:

  • A parent is unfit due to issues like drug abuse.
  • There is domestic violence or a toxic relationship.
  • A parent has abandoned the child.
  • Parents are unable to cooperate on decisions.
  • The child has special medical or educational needs better met by one parent.

The court aims to protect the child’s safety and well-being. Limiting contact with an abusive or negligent parent may be warranted.

Sole legal custody ensures one parent can make prompt decisions without conflict. But the non-custodial parent usually has visitation rights.


Q: What is the process for modifying a child custody determination?

A: The process for modifying a child custody determination involves filing a motion with the court and demonstrating a substantial change in circumstances that warrants a modification.

Q: What are child custody proceedings?

A: Child custody proceedings are legal processes where the court determines custody and visitation arrangements for the child.

Q: What does it mean to be awarded legal custody?

A: Being awarded legal custody means that the parent has the right to make important decisions about the child’s upbringing, such as education and healthcare.

Q: How can I make a child custody determination?

A: You can make a child custody determination by approaching the court and filing a petition for custody.

Q: What is child custody and parenting time?

A: Child custody and parenting time refer to the division of responsibility and time spent with the child between parents who are no longer together.

Getting Legal Help With Child Custody

Child custody can be a complicated legal issue. Working with an experienced family law attorney can help parents:

  • Understand their custody rights and options
  • Gather relevant facts and evidence for their case
  • Negotiate an out-of-court settlement if possible
  • Represent their interests effectively in mediation or litigation
  • Craft a parenting plan detailing custody schedules, visitation, and transition arrangements
  • Advocate for arrangements protecting the child while preserving parental rights

In matters as critical as child custody, having legal guidance and advocacy can be extremely beneficial. An attorney familiar with local laws, court procedures, judges, and family mediators can increase a parent’s chances of a favorable outcome.

Child custody disputes are complex legal proceedings that involve the most important responsibilities parents can have – raising their children. With so much on the line, obtaining legal expertise should be a top priority for any parent facing a custody battle.

By Christine Mayle