Most people view custody of their children during a divorce in terms of physical and legal custody. While there is a difference, there is also another relevant term that can add further confusion to the situation: “parenting time” or “visitation.” So what is the difference, and what does this mean for the parents and the child?
At its most basic, custody refers to having some level of legal control over how the child is raised. The court will decide what level of custody will be afforded to each parent after taking into account a number of factors, such as:
- Emotional ties between the child and parents
- Moral fitness of the parents
- Physical and mental health of everyone involved
- Presence of domestic violence
- Ability of each parent to support the child
- Preference of the child, if he or she is old enough to express it
Legal vs. Physical Custody
If a parent has legal custody, then that parent is the one who makes major decisions about the child’s life. For example, they choose which school their child attends, and they also determine how and where medical care is given. In turn, they are also responsible for the financial responsibility of these decisions.
Physical custody regulates the child’s living arrangements. This does not necessarily mean the child will never be allowed to see one of the parents (unless it is so ordered by the court), but rather the child is living with each of them for a certain amount of time. Depending on the arrangement, the child may, for example, live with each parent for half of the week. Or they may stay with one parent most of the time and only see the other on certain occasions.
Sole vs. Joint Custody
Joint and sole custody is the determining factor in how much legal control a parent has over certain aspects of raising the child. Joint custody means both share responsibility, while sole custody gives the authority to only one parent.
Parenting time, or visitation, is a schedule that outlines how long and when a child will spend time with each of his parents. Depending on the situation, the court order may put together specific details on how visitation is to take place or allow parents to work it out themselves. The main factors determining this include how far apart the parents live from each other, the child’s age, and the parents’ personal schedules.
If the parents are able to reach a reasonable agreement on their own, they can work out the details without the intervention of the court. They have full control over times, dates, and drop off locations, and they can be changed as needed.
However, sometimes there is too much animosity or scheduling conflict between the parents. In this case, a judge will decide when and where a child will spend time with each parent. Some of the factors determining the decision may include:
- Possibility of abuse or neglect from a parent
- If a child is still nursing
- If the child has special needs
- Impact and inconvenience to the child for travel
- Whether either parent is a flight risk
Many courts simplify the process by implementing a standard parenting time schedule. Typically, this involves giving parents every other week or weekend, splitting holidays, and alternating from year to year. In the event of possible harm or threat of harm to the child, it is likely the court will require a third party to supervise visitations. This could be a relative, friend, or someone of the judge’s choosing.
Changing Custody or Parenting Time
Should the custody arrangement or visitation schedule need to be changed, a judge requires evidence of proper cause or change of circumstances before permitting any changes. Here, the distinction between the two types of changes (either custody or parenting time) is important. A custody change does not include normal life changes and the proper cause or change of circumstances must have a significant impact on the child. If an established custodial environment has been established, a high standard of proof is required to prove that the change is in the best interest of the child.
In some cases, normal life changes that do not alter the established custodial environment may still be sufficient for a lower standard of proof to modify parenting time. The question for the court in deciding whether a normal life change is worthy of a parenting time change becomes two-fold: (1) whether sufficient parenting time has been preserved in the proposed parenting time plan to keep the established custodial environment, and (2) whether such change is in the best interests of the child.