Answers From a Child Custody Lawyer

What happens with the kids after the divorce is started? Things can get complicated when you have children under age of 18 living with you when separating or filing for divorce. If you have minor children living with you, you and your spouse have to decide where the children will stay. The best way to do it is to talk to your spouse first, and see if you can reach an agreement regarding the children’s living arrangements. However, if you and your spouse cannot come to an agreement, you can ask the court to set custody and visitation arrangements for your children. This arrangement will become a court order, which means, you or other parent can enforce it in case the order is not followed by either parent. The court order will reflect the custody and visitation schedule as well as provisions prescribed by law or mediated by the court.

What is Legal Custody? Legal custody allows parents to make decisions or choices about their children’s school/child care; medical decisions; religious activities; sports and other extracurricular activities; travel; or residence. Parents who share legal custody both have the right to make decisions about these aspects of their children’s lives, but they do not have to agree on every decision made on their child’s behalf. Either parent can make a decision alone.

What is Physical Custody? Physical custody can be joint when the children live with both parents or sole when the children live with one parent most of the time and visit the other parent. Joint physical custody does not mean that the children must spend exactly half the time with each parent. Usually the children spend a little more time with one parent than the other because it is too hard to split the time exactly in half. When one parent has the children more than half of the time, then that parent is sometimes called the “primary custodial parent.” Sometimes, a judge gives parents joint legal custody, but not joint physical custody. This means that both parents share the responsibility for making important decisions in the children’s lives, but the children live with one parent most of the time. The parent who does not have physical custody usually has visitation with the children.

Do I have a right to spend Holidays with my children? Yes, you do have a right to spend holidays with your children, but remember that other parent has this right as well. You can make an agreement about the holidays that you would like to spend time, however, absent an agreement, the holidays will be divided equally between the parents, and parents will alternate each year with the children. However, the court may take into consideration some special holidays such as cultural, religious holidays, etc. and give that specific time to asking parent. However, this should not be intended to interrupt other parent visitation time with the children.

Can I take my children on vacation to a different state or country? You need the other parent’s permission to travel out of state with your children, especially if you want to leave the country or if, because of your traveling with your children, the other parent will miss his or her court-ordered visitation. If you cannot find the other parent, you will need to go to court and ask the judge for permission to let you leave without the other parent’s permission. You will have to look for the other parent and tell the judge everything you tried to find him or her.

I found a job in a different state and what to move there. Can I take my children with me? If you have a permanent order for sole physical custody (also called “primary physical custody”), you can move away with the children, unless the other parent can show that the move would harm the children. However, if you and your spouse have joint physical custody of the children and one parent does not want the children to move, you must show the court that the move is in the best interest of the children.

Can I change my current court order? Yes, but you have to show that there has been a “change in circumstances” since the final custody order was made. This means that there has been a significant change that requires a new custody and visitation arrangement for the best interest of the children. Parents may need to renegotiate portions of their court order every 2 to 3 years. If the parents agree on the changes, they can change their court order by using an agreement. But if the parents cannot agree on the changes, one of the parents must file papers with the court asking for a change (a “modification”) of your current child custody and visitation order.

The other parent and I agreed to a visitation arrangement that differs from the current court order. Do we have to come to court to change it? A written agreement signed by you and the other parent is a binding, enforceable agreement. However, a court cannot enforce such an agreement until it has become an order of the court called a “judgment.” A court may create a judgment by merging and incorporating the provisions of the agreement into the judgment. The judgment then replaces the agreement and can be enforced by the court if either parent violates it.

When you’re ready to get in touch with an attorney at Maples Family Law, please contact us.