September, 2002

Child Custody

There is no issue more hotly contested than that of child custody.  Where you may settle over the division of your house, you will stand much firmer when it comes to custody of your child.  Let's face it.  If s/he can't even take care of the goldfish, you'll be damned if s/he is put in charge of your kid.  When it comes to child custody, there are two different categories to be aware of:

1.          Legal Custody - who makes the major decisions

            regarding the child's welfare, including matters of

           education, medical care and emotional, moral and

           religious development; and

2.          Physical Custody - who the child resides with

           on a regular basis, with visitations with the other

           parent.

Either parent can have Sole Legal Custody or Sole Physical Custody, or both parents can have Shared Legal Custody or Shared Physical Custody.  When both agree as to the custody arrangement, that is great - for both the parents and the children.  What about when you don't agree?

It's pretty straightforward when both parents want sole physical custody of the child.  They hold a trial and each tells the judge what a rotten parent the other one is.  "Your Honor, she ignores the kids all day while sitting  on the couch watching Oprah"  or  "Your Honor, he drinks all day and passes out on the couch before its time to even make the kid's lunch."  Must be a pretty crowded couch.  After trial, the judge grants sole custody to one or the other parent (or in the extreme circumstance, they have both so successfully convinced the judge of the other's ineptness that DSS gets the children).

But what about when one parent only wants Shared Physical Custody and the other still says "no way!"?  When custody remains contested and either party seeks shared custody, both parties have to submit what is called a Shared Custody Implementation Plan (SCIP).  The SCIP is a proposed plan of how shared custody is going to work, including a custody schedule, and what the child will be doing education-wise, health-care-wise, etc-wise.  The SCIP should also include a plan on how to resolve disputes in case the parents cannot agree on anything that may pop up in the future (and there will be plenty).

At trial, the court may accept the SCIP submitted by either party, it may issue its own plan, or it may just issue sole custody to either parent.  In my experience, the most common scenario is that both parents will have shared legal custody and one parent will have sole physical custody, with visitation rights being granted to the other.  This is not to say that you shouldn't fight for Shared Physical Custody if you think this would be in your children's best interest.  Fortunately, that is what ultimately counts.