After the grounds for divorce are substantiated, the remainder of the divorce process is primarily resolving how to sever the marriage relationship before an official divorce decree is entered. The issue of child custody can be one of the most emotional and contentious parts of the process. Though most courts will allow the parents to reach their own agreements, the court will review the parental agreement and reach its own decision if the parents cannot agree.
Parenting Agreement
A parenting agreement is a private understanding between spouses on how they will distribute and share the rights and responsibilities of parenting their children after divorce. This includes living and visitation arrangements, health insurance and other financial concerns, education and, potentially, religion. The agreement can be a separate document or part of the marital settlement agreement. The agreements can be reached by the spouses directly, through their attorneys or after a period of mediation or counseling.
Types of Custody
The types of custody are legal and physical, and two ways each can be shared are joint and sole. Legal custody over a child pertains to the right of the parent to make decisions about how the child will be raised, such as which schools they will attend, where they will live and what religion, if any, they will practice. Physical custody is the right to provide day-to-day care of the child, usually with the child living in the parent's home. Both types of custody can be awarded jointly, shared to some degree by both parents, or solely to one parent.
Temporary Orders
A divorce cannot be finalized until all the issues, including division of property, payment of alimony and child support, are settled. In the meantime, it is possible for one or both parents to request a temporary order from the court granting some award of physical and/or legal custody until the divorce is finalized. This can be used to implement an agreement that will be instituted in the final divorce or in lieu of a final agreement yet to be reached if it is in the best interests of the child.
Court Supervision
The welfare of children during and after a divorce is one of the principal concerns of the courts. Because the children presumably can't protect their own interests, court envision their role as ensuring the best interests of the child are served. States do this in different ways. Most will review, and approve or modify an parenting agreement drafted privately by the spouses. Many, but not all states, will presume a very young child is best served by spending a considerable percent of the time with the mother. But, increasingly, many states also presume that the best interests of the child is to have access from both parents.
Factors
When a court must intervene to decide child custody because the parents cannot reach a private agreement, the factors the court weighs depend on state law. Most states will consider the age and preferences of the child. They also consider the existing relationships between the child and between the two parents, and each parent's ability to provide for the child financially and emotionally. Unless it's a no-fault divorce, the court will likely also consider the cause of the divorce and whether there is an impact on the child. Parents are usually not stripped of legal custody without good reason, such as incarceration for serious crimes, or domestic violence or sexual assault on a minor.
