The rights a person has depends on the custody order either set by the court or agreed to by both parties during a settlement.
Legal custody allows a parent to engage in or make major decisions about a child’s upbringing such as their education or religion. There is a statutory presumption that favors married parents who divorce sharing legal custody of their children.
Physical custody refers to when and how much time children spend with each of their parents.
As part of the divorce process, parents are required to present the court with a proposed parental responsibility plan. The plan must include at minimum:
- A schedule of where the child will physically reside during the year
- Whether legal custody will rest with one or both parents, this will include the authority to make decisions regarding schools
- How any future custody issues will be handled
- Any consequences for a parent that fails to follow this plan
- How to handle the child’s needs as they grow
- Shielding the harmful effects of conflict from a child, promoting cooperation between the parents and protecting the best interests of the child
Best Interest of the Children
Modification after Divorce
To obtain a modification of a child custody and visitation order, a parent has to show that circumstances have substantially changed from when the original order was made.
Then, once again, the court will need to go over the factors of the best interest of the child. Some of the factors that most apply to a modification, like wanting to change to joint legal custody for educational decision-making power, are:
- Capacity of a parent to understand and meet child’s needs, this can change as children grow
- Developmental needs and temperament of the child, again this will vary depending on the age of the child
- Household stability for each parent, this can also change as time passes
- Any indication that a child is being alienated by being included in custody disputes, the best indicator of this will be post-divorce
- Whether a parent can coordinate with the other parent and follows custodial orders