Practice Center – Child Custody, Child Support, and Visitation Law

Frequently Asked Questions about Child Custody and Visitation

Q: What is the difference between legal and physical custody?

A: Physical custody refers to where the child lives and who has responsibilities associated with daily childcare. Legal custody is the decision-making responsibilities associated with the education, healthcare and religious upbringing of a child.

Q: When parents fight over custody, how does the court decide?

A: The typical standard is the best interests of the child. Each state has specific guidelines, but the court usually takes into consideration what each parent wants, what the child wants (if the child is old enough and/or mature enough), which parent has been the primary caretaker, the parenting abilities of each parent and whether there is a history of abuse.

Q: What if the custody arrangements aren't working out?

A: It is not always easy to modify a custody arrangement that has been ordered by the court or agreed upon by you and your child's other parent. The agreement itself may set out methods by which it can be changed. Your state will also have laws that apply to custody modification. It is typically more difficult to change the custody arrangements than it was to set them in the first place; there must have been a substantial change in the circumstances this time around. An experienced family law attorney can advise you on your rights in your state.

Q: Is joint custody better?

A: While no one solution is right for everybody, most children of divorce benefit from the ongoing involvement of both parents. Joint custody will not work if the parents are not living in the same area or if the parents cannot work together. Family circumstances like domestic violence, physical or sexual abuse, chemical dependency and neglect also affect the court's determination.

Q: If my former spouse is behind on child support payments, can I prevent his or her visitation?

A: Parenting time and child support are not dependent on each other. It is not considered to be in the best interests of the child to prevent contact with the other parent because of child support problems. You have other remedies, like going to court or the child support enforcement office, if your former spouse is not making child support payments.

Q: I want to move to another state with my child. Can I do that?

A: This is another custody matter that varies from state to state, but most states share some overriding principles. The court will probably weigh the reason for the move; its probable effect on the child; whether you have sole or joint custody; if the child's other parent has objected to the move; and how often the other parent will be able to see the child.

Q: If the judge in my divorce case orders a custody evaluation, what should I do?

A: Cooperate with the custody evaluator; the evaluation is designed to find out what is in the best interests of your children. Custody evaluations are a regular part of contested custody cases. Share any concerns that arise during the evaluation with your attorney.

Q: What is parental alienation syndrome?

A: Parental alienation syndrome occurs when the first parent convinces the child that the second parent has nothing to offer the child (or that the second parent is a bad parent or spouse), and the child comes to see the second parent in a uniformly negative light. The child insists on staying with the first parent and refuses to see the second, usually in order to show loyalty to the first parent. Courts disapprove of this type of behavior on the part of a parent and typically demonstrate such disapproval when making custody and visitation decisions.

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