Physical Custody

Custody is determined by whatever the judge feels is in the child(ren)'s best interest.

Overview

A court determines custody based on what is in the child(ren)'s best interest under all of the facts and circumstances. This usually means comparing one parent to another and determining whether one or both are responsible parents. Common things a judge might look at include which parent reliably takes a child to school and doctor appointments, treats the child(ren) when they are sick, and takes them to enrichment activities.

Settling

Going all the way to trial on custody disputes is often disfavored. Going to trial means testifying on the stand that your ex is a bad parent. However, the court almost always orders at least some degree of coparenting. Meaning, you may have to coparent with the person you called a bad parent for years. Often, the conflict between the parents is more damaging for the child than any shortcoming in either parent's parenting skills.

Diary

We encourage clients to keep an incident diary with the day, time, evidence, and details of any incident involving custody prior to trial. This way, if you do go to trial, you will have a detailed list of each incident where your ex didn't take a child to school, failed to pick them up on time, or had some other failure as a parent. Bad parenting is rarely something you can prove by pointing to a single piece of evidence, rather than a large collection of incidences over time.

The Constitution

The Supreme Court has determined that the biological parents of a child have a constitutional right to be involved in the child(ren)'s upbringing. It determined that the constitutional minimum custody a parent is entitled to is every other weekend. In most cases, when someone says "primary custody" what they mean is that one parent will have custody most of the time and the other parent will have the constitutional minimum of every other weekend.

This constitutional minimum does not apply if a parent does things that constitute an abandonment of their role as a parent. For example, parents are not normally required to bring a child to a prison cell to visit a parent that is in prison. A drug-addicted parent may still get supervised custody. However, a parent that has physically or sexually abused the child(ren) may not be allowed to ever see their child again, in order to protect the child from the emotional trauma of seeing them.

Supervised Custody

In many cases where one parent cannot be trusted to keep the child(ren) safe, such as if they are addicted to drugs, the court may still allow the unsafe to have supervised custody. Supervised custody is where either a facility that provides supervised custody as a service, or a family member or other representative, supervises the parent during their time with the child to ensure the child is safe and taken care of.