Divorce cases often include not only the spouses but also any children born during the marriage. Issues relating to children in divorce often are legally complex and emotionally challenging. Both parents possess certain legal custody rights in divorce proceedings, according to NOLO. These rights exist in regard to establishing, enforcing and changing custody arrangements and orders.
Types of Custody Rights
Two types of custody rights exist under family law statutes across the United States: legal and physical or residential, according to Cornell University Law School. Legal custody is the right to make major life decisions for the benefit of a minor child in areas such as education, health and medical care, and religion. Physical or residential custody is the right--and associated obligation--to provide a home for the child on a consistent basis.
Division of Custody Rights
There are three kinds of legal and physical custody in divorce proceedings: sole, joint or shared. Sole custody exists when only one parent exercises either legal or physical custody. Joint custody is an arrangement where both parents share either legal or physical custody. Shared custody applies only to the physical placement of the child. Through a shared-custody arrangement, each parent provides a home to the child 50 percent of the time.
Standard to Establish
All U.S. states use the same standard in determining the custodial arrangement in a divorce case. The standard requires an examination of what is in the best interests of the minor, according to Cornell University School of Law. In seeking to exercise the right to custody, a parent must convince the court that an award in her favor meets this legal standard. Factors taken into consideration in applying the standard include a review of which of the parents historically has served as the primary caretaker for the minor. Other factors include the mental, emotional and physical health of the parents and child, as well as the preferences of the parents and the type of residence maintained by each of them.
Enforcement
Another right arising out of custody and divorce matters is the right associated with enforcing the order of the court regarding these issues. For example, if you have sole physical or residential custody of the child and the other parent refuses to return the child after visitation, you can file a motion to enforce. Through this process, the child is returned to you and the other parent faces sanctions, including suspension of her visitation rights.
Standard to Change
Legal custody rights in divorce cases also permit you to seek a change of custody in certain situations. In order to prevail in exercising your right to attempt to alter a custody order, you must demonstrate the existence of a material change of circumstances. What this means is that you must provide evidence that the situation surrounding the current custodial arrangement has altered to such a degree that the best interests of the minor are at risk. For example, if the parent with primary physical or residential custody develops a serious illness and cannot properly tend to the needs of the child, a change of custody may be needed.
References
- NOLO: Child Custody FAQ
- Cornell University Law School: Child Custody Overview
- "The Complete Divorce Handbook: A Practical Guide"; Brette McWhorter Sember; 2009
