Child Custody and Visitation

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Determining Child Custody and Visitation

One of the most difficult and emotionally charged issues between couples filing for divorce is often the determination of custody. Child custody can be "sole," "joint," "joint legal," "joint physical" or some combination.

  • "Joint custody" means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody. In making an order for joint custody, the judge may order joint legal custody without ordering joint physical custody.
  • "Joint legal custody" means both parents have equal rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
  • "Joint physical custody" means that physical custody is shared by the parents in such a way as to assure the child of substantially equal time and contact with both parents.
  • "Sole custody" means a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order. Unless otherwise provided by court order, the person awarded sole custody of a child shall have the rights and responsibilities for major decisions concerning the child, including the child's education, health care, extracurricular activities, and religious training, and the noncustodial parent shall have the right to visitation or parenting time. A person who has not been awarded custody of a child by court order shall not be considered as the sole legal custodian while exercising visitation rights or parenting time.

The judge, in the exercise of sound discretion, may look into all relevant facts and circumstances in determining what is in the best interest and welfare of the child or children. Both parents stand on equal footing, with there being no presumption in favor of the mother or father.  Generally, judges consider it important for the children to have as much stability as possible. 


The courts take into consideration the willingness and ability of each parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent. The mental health and physical health of each parent are factors the court may consider. The court will likely consider which parent has spent more time with the child or children and which parent is most involved in the children's activities. Any fact relevant to a determination of the best interests of the children may be considered during the court's inquiry. The parents may agree as to all issues of custody, and the court will follow such agreement unless the court finds that such agreement is not in the best interests of the children. 


When a child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live. The child's selection for purposes of custody shall be presumptive, unless the parent so selected is determined not to be in the best interests of the child. When the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody.  


Child visitation rights are also determined by the court based on the best interests of the children, if the parties cannot agree. The courts generally believe that both parents should be substantially involved in the lives of the children. A Parenting Plan which details the custodial arrangement, visitation and other rights relating to the children is entered in all cases with minor children. 


Whether you are involved in a messy divorce, or a peaceful separation, Harris Divorce & Family Law is ready and available to help you every step of the way. Each case and each client are very important to us, and we can exhaust all of our resources in order to find an effective plan of action and work to reach the desired outcome.