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Child Custody FAQ

Determining who gets custody of the children when a couple breaks up can be difficult and emotionally draining. It's important to understand how child custody laws work in your state.

To get state-specific information and feedback about your particular set of circumstances, it's best to talk to a child custody lawyer. But here are answers to some frequently asked questions about child custody laws.

What is physical custody?

Physical custody refers to with which parent a child physically resides. Parents may share physical custody, which means the children alternate between households. This does not always mean each parent gets the children an exact 50 percent of the time.

What is legal custody?

Legal custody refers to the parents' ability to make the major decisions about a children's life, such as medical treatment, which school they will attend or whether they will be raised in a religion.

Connect with a local Child Custody Lawyer

Is it possible for a parent to have legal custody but not physical custody?

Yes. It is also possible, though rare, for a parent to share in physical custody but not have legal custody. Also rare is split custody, where siblings are sent to different parents to live.

What is joint custody?

Joint custody is when both parents share legal and physical custody. Most courts prefer to award joint custody as long as there is no risk of harm to the children.

How is child custody determined?

If the custody dispute arises out of a divorce, the divorcing parents will be encouraged to come up with a custody agreement, also called a parenting plan, usually with the help of their lawyers. If the parents cannot agree on a custody arrangement, the judge handling the divorce will decide the matter for them.

The states handle custody disputes between two parents who were never married differently. You should consult with a lawyer to discuss the child custody law in your state and how it applies to unmarried parents. Ultimately, it may also be a judge deciding custody between two unmarried parents.

The child custody laws in most states require judges to consider the best interests of the child when it comes to determining custody. In doing so, they look at:

  • The physical, mental and emotional health of each parent
  • The community, including schools, to which the children already have ties
  • The parent's financial status and ability to provide a home for the children
  • Any history of child abuse
  • The parents' education
  • The relationship the children have with each parent

Will my children get a say in the custody decision?

In some states yes, but it depends on the age of the child and whether the judge believes the child is mature enough to explain why he may prefer one parent over the other.

Can custody agreements be changed?

Yes. As the parents' and children's needs change over time, you may be able to change the custody agreement. There may be some timing issues involved. For example, in some states, you may have to wait two years after a court approves a child custody decree to change it.

In seeking a custody change, you will again have to prove to a judge why it is in the best interests of your children. You should consult a child custody attorney for specific advice about your case.

What is visitation?

If you do not have physical custody of the children, it is still possible for you to have visitation rights. A visitation schedule is usually decided between the parents, but if you cannot agree, a judge may decide the matter for you.

Visitations may be unsupervised, in which you can visit your children without the other parent present, or supervised, in which a third party is present to monitor your interaction. Supervised visits are required when one parent may present a possible threat to the children.