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Custody and Parenting Time
Legal Custody and Physical Custody
People often think about custody in terms of “legal” custody and “physical” custody. Legal custody means having the right to make important decisions about your children, such as where they go to school, what religion they are, and major medical decisions. Physical custody refers to the children's living arrangements.
Custody can be “sole” or “joint.” Sole custody means only one parent has custody. Joint custody means the parents share custody. If parents share legal custody, they must make important decisions about their children together. If parents share physical custody, the children take turns living with each parent.
Parenting Time (Visitation)
A parenting time schedule tells when the children spend time with each parent. If a court order says “reasonable” parenting time, parents must work out the specific dates, times, and other conditions together. The children’s ages, how far apart the parents live, and the parents' schedules can affect a parenting time schedule.
If a judge orders specific parenting time, all the details are included in the court order. It may work best to have a specific parenting time schedule if you and the other parent can’t easily talk to one another or agree on a parenting time schedule.
Many family courts have a standard parenting time schedule that may be used in your order. A standard parenting time schedule normally gives parents every other week and/or weekend. Holidays are split between the parents, and they switch each year. For example, this year you have the children for Christmas Eve and the other parent has the children for Christmas Day. Next year the other parent will have Christmas Eve and you will have Christmas Day.
If one parent is irresponsible or has harmed or threatened to harm the children, the judge may order parenting time to be supervised by a third party. The supervisor could be a friend, relative, or another person the judge chooses.
How Custody and Parenting Time Are Decided
Initial Custody Order
Established Custodial Environment
The law says generally that custody arrangements for children should remain stable. Because of that, the judge will always ask whether the child has an established custodial environment (ECE) with one or both parents. If so, it will take more evidence for a judge to change the current arrangement.
When deciding if there is an ECE, the judge looks at what the child's life is like. For example, does the child look to one (or both) of the parents for love and affection, food, housing, and other needs? Is the child old enough to have been in the current arrangement for a significant amount of time?
The Best Interests Factors
You and your child’s other parent may be able to work out custody and parenting time for your children. If you aren’t able to agree, the judge will decide custody and parenting time based on the best interests of the child. This legal test requires the judge to consider these 12 factors:
Factor (a): The love, affection, and other emotional ties existing between the parties involved and the child;
Factor (b): The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any;
Factor (c): The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs;
Factor (d): The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;
Factor (e): The permanence, as a family unit, of the existing or proposed custodial home or homes;
Factor (f): The moral fitness of the parties involved;
Factor (g): The mental and physical health of the parties involved;
Factor (h): The home, school, and community record of the child;
Factor (i): The reasonable preference of the child, if the judge considers the child to be old enough to express a preference;
Factor (j): The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A judge may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
Factor (k): Domestic violence, regardless of whether the violence was directed against or witnessed by the child;
Factor (l): Any other factor considered by the judge to be relevant to a particular child custody dispute.
Changing a Custody Order
What is a Final Custody Order?
A final custody order is a judge’s decision after an evidentiary hearing, or an order based on the parents' agreement if the judge has adopted it. It does not include a temporary order used while a divorce or custody case is pending.
Proper Cause or Change of Circumstances
When changing an order, a judge makes custody decisions differently than when making the first custody order. The judge won’t change the custody arrangements unless the party asking for the change shows there is either "proper cause" or a "change of circumstances" to consider the change.
Proper cause or a change of circumstances is more significant than normal life changes. It must be something that has a big impact on the child. Only after proper cause or a change of circumstances is shown can the judge reconsider what custody arrangements are in the best interests of the child.
Evidence Needed to Change Custody
If the judge finds there is proper cause or a change of circumstances to reconsider the best interests factors, the judge must still look at whether an established custodial environment (ECE) exists.
If the judge finds there is an ECE, a higher standard of proof is needed to change custody. The person wanting the change must prove by clear and convincing evidence that the change is in the best interests of the child. If the judge finds that there is no ECE, the person seeking the change in custody must prove by a preponderance of evidence that the change is in the child's best interests.
To decide parenting time, the judge uses the 12 best interests of the child factors. The judge also uses these other factors to decide how often each parent has parenting time, how long visits are, and whether the parenting time is supervised:
Factor (a): Any special needs of the child;
Factor (b): Whether the child is nursing;
Factor (c): Whether abuse or neglect of a child during parenting time is likely;
Factor (d): Whether abuse of a parent during parenting time is likely;
Factor (e): The inconvenience and impact on the child of traveling for parenting time;
Factor (f): Whether a parent is reasonably likely to exercise parenting time;
Factor (g): Whether a parent has frequently failed to exercise reasonable parenting time;
Factor (h): The threatened or actual detention of the child with the intent to retain or conceal the child from the other parent or from a third person who has legal custody. A custodial parent’s temporary residence with the child in a domestic violence shelter shall not be construed as evidence of the custodial parent’s intent to retain or conceal the child from the other parent;
Factor (i): Any other relevant factors.
To learn more about divorce with minor children, see the article Introduction to Divorce with Minor Children and the I Need a Divorce and I Have Children toolkit. Or, you can complete our Do-It-Yourself Divorce if you want to file a divorce case.