What factors go into determining custody and visitation?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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In almost every case, courts encourage separating parents to make a child custody or visitation plan on their own without judicial intervention. This plan may be made through the parents working together with the help of a licensed mediator. This is preferable as parents are in the best position to know and understand their family dynamic and schedules. However, sometimes it is not possible for parents to agree. In such cases, visitation rights and custody can be litigated and the court will use a “best interests of the child” standard.

How the Best Interests of the Child Influences Custody and Visitation Rulings

Each state has their own rules and criteria used to determine what the best interests of the child are. However, there are some commonalities among the rules of these states. First, courts generally begin with the idea that it is in the best interests of the child to have a continuing relationship with both of his or her parents. This means that unless there is a compelling reason to preclude each parent having at least visitation rights, custody will be shared in some manner. This could mean one parent is awarded custody and the other visitation, or it could mean that parents share their time on an equal or close to equal basis. 

Factors Used to Determine Custody and Visitation Decisions

The factors that determine how custody and visitation should be split include:

  • The child’s opinion and wishes if the child is old enough to express them. Usually, children over 12 are given the opportunity to speak up about custody issues if they choose to. 
  • The relationship of the child with each parent. Usually, the court will look at whether there is a primary caregiver when evaluating the parent/child relationship. If one parent has provided the bulk of care during the child’s life, allowing that child to continue to spend the majority of his time with that parent will often be less upsetting to the child. 
  • The willingness of each parent to facilitate a continued relationship with the other parent. In other words, if one parent is engaging in parental alienation (badmouthing the other parent) the court will consider that as a strike against that parent. 
  • The ability of each parent to provide the best, most stable, supportive and loving home.

The above are just samples of some of the factors used to determine custody and visitation. To get more specifics about what will be determinative in your particular situation, it is a good idea to contact an experienced attorney in your jurisdiction for guidance and advice.  The lawyer can explain the law applicable to your individual situation, explain the local court practices and procedures and the personal preferences of the local family courts.

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