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Child custody law and visitation rights fall under the broader category of family law. Typically, whatever court handles the divorce proceedings for the parents of the child also determines the child custody and visitation rights.

There are four legal terms or designations regarding custody.

Custody rights are divided between physical custody (which is the right of a parent to spend time living with the child) and legal custody (which is the parental right to make major decisions regarding the health, welfare and education of the child).

Legal custody can be awarded to one parent (referred to as sole legal custody), in which case the designated parent is not required to consult the other parent before making decisions. It can also be awarded to both parents (referred to as joint legal custody); in this scenario, both parents participate in the decision-making process.


Within the physical custody determination, the court will designate one parent as the custodial parent (sometimes also referred to as the “primary residential parent”). The other becomes the non-custodial parent. A non-custodial parent has access to the child according to a visitation schedule agreed to by the parents and ordered by the court. Visitation rights generally depend on the age of the child and the facts of the case. Typical visitation patterns are every other weekend, alternating holidays and several weeks during the summer.

Unless there are special circumstances to consider—such as a parent's previous history of child or substance abuse, the mental and physical health of the individuals involved—the court usually allows parents to split custody and visitation rights equally. However, under the constraints of school and work arrangements, it is often difficult to split a child and a parent's time equally. Thus, it is typical for one parent to have a child live with him or her during the workweek and the other parent to have the child on the weekend.

State courts are the primary jurisdiction over family law matters. Most state courts decree that both parents are entitled to equal access to documents concerning the child's educational progress and medical records, regardless of whether the parents have joint legal custody or one parent has sole legal custody. Legal sanctions can be imposed where one parent tries to hinder the other parent from access to records.

Child support laws are separate from other matters; thus, in some states, whether a parent's child support payments are in arrears will have no impact on visitation rights.

Parents seeking modification to existing custody or visitation orders may file a request for modification but are required to show there has been a substantial and continuing change of circumstances that will have an adverse effect on the child if the court does not allow the requested modification. A parent moving to another state or the advent of a parent's drug or alcohol abuse are examples of changes that may have adverse effects on the child.

By Kathleen Goolsby           


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