DIVORCE FAQ #13

13. What choices does the judge have in granting custody or visitation rights?

The judge may give custody to one or both parents, or, in some cases, to another adult based on the
best interests of the child. Considerations include the child's health, safety and welfare, as well as any
history of abuse by one parent. For custody to be awarded to someone other than a parent, however,
the judge would have to believe that giving custody to either parent would be detrimental or harmful to
the children.

  • Joint legal custody. The parents share the right and responsibility to make important
    decisions about their children's health, education and welfare. Such decisions might include, for
    example, where the children will attend school or whether they should get braces on their teeth.

  • Sole legal custody. One parent has the right to make decisions related to the health,
    education and welfare of the children.

  • Joint physical custody. The children spend time living with each parent on a regular basis.
    This does not mean, however, that the children must spend equal amounts of time with each
    parent.

  • Sole physical custody. The child lives with one parent and the other parent has visitation.

Try to keep in mind that the actual time spent with your children is probably more important than the
legal terminology used to describe the arrangement. Also, the specifics of such custody orders can
vary. For example, a judge who orders joint legal and physical custody may name one parent as the
primary caretaker and one home as the primary residence. Or, a judge might order sole physical
custody to one parent and supervised or no visitation to the other if it appears that a parent may
present a threat to the child's welfare or safety. In addition, stepparents and grandparents may be
given visitation in certain circumstances. Be clear and specific in writing your parenting plan.

Law enforcement may help you enforce a custody or visitation order, if necessary. You will need a
certified copy of the order. Or, if you are unable to locate your child, you may seek assistance from
your local district attorney. The person violating the order could possibly, at your request, be found in
contempt of court. If the other parent won't obey the order and these suggestions don't work, you may
want to consult an attorney.

It is important, too, to remember that your custody plan can be changed if it doesn't work. If your
circumstances change, you can return to court and request a change in the parenting plan even if a
temporary or permanent order has already been established. The same procedures discussed in
question #12 would apply to such a request.

Or, if you and the other parent can reach an agreement, you may submit it to the judge and ask for a
court order. Judges often approve changes even without a hearing if you both request them.


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