Areas of Practice
Family Law
Custody and Physical Placement
If you are the legal custodian for your children, this means that you have the legal right to make major decisions concerning the children. If you are the legal custodian, you have the right to give or withhold consent for your children to marry or to enter the armed forces. You have the right to obtain medical, dental, educational and other care for your children. You can select the religion in which your children will be raised. You may be able to select the school(s) your children attend. The general options on legal custody are that you can have sole legal custody, your spouse can have sole legal custody, or your spouse and you can share joint legal custody. If your spouse and you are able to communicate and work together on making major decisions, such as those above specified, for the best interests of your children, joint legal custody may be the best for your children.
If you have joint legal custody, you share custodial rights and responsibilities for the children with your spouse, and your rights are neither superior nor inferior, unless the Court order contains a limitation. Both parties will share in the decision making for the children. Joint custody does not mean where the children live. It means the right to make certain decisions for the children. If the parents are able to communicate and make a joint agreement on issues involving legal custody, we believe that joint legal custody may be most appropriate in most cases, because it most closely resembles how decisions were made when the parties were married. On the other hand, if the parents cannot agree on anything, it may be better for the children to have only one parent as legal custodian. Alternatively, the court can give each parent authority to make custodial decisions in certain areas. This works well if the respective areas of responsibility are defined. Remember that the court will maintain continuing jurisdiction over the children before they become emancipated, and that it is possible, given certain circumstances, to effect changes in custody (or physical placement) after the divorce has been granted.
"Physical Placement" means where the children normally live. If you have your children living with you more than one half of the nights of the year, you would normally be considered to have physical placement and be entitled to receive child support from your spouse. "Primary" physical placement refers to the fact that you have the children more than your spouse does. If your children live with you, your spouse would normally be entitled to regularly scheduled placement. In many ways, the concept of placement may be more important than legal custody, since the primary placement parent generally makes the daily decisions involving the children. Both parents are entitled to periods of placement with their children unless this is not in the best interest of the children. If you are behind on your support, your spouse cannot deprive you of visitation for this reason alone.
Placement may be either reasonable notice or structured placement or a combination of both. If the parties are agreeable, reasonable placement notice may be best. This means that a party who does not have primary placement will be able to have placement with his/her children when he/she wants to, assuming that reasonable notice is given to the parent with primary placement and that the children are available and do not have prior commitments. This system works well if the parties want to promote the best interests of the children and do not play games, because it most closely approximates the situation the children would be in if the parties had remained married, i.e. each parent would do things with the children as they had the time and the children were available. This type of placement does not work very well, however, if the parties are not able to cooperate and communicate well for the benefit of their children.
An alternative to the "reasonable placement/reasonable notice" method is to have regularly scheduled placement. Structured placement means that the placement is set up so that each parent has the children at specific times during the week or month, which times are agreed to by the other parent. In our experience, the court will approve almost any placement schedule that is realistic, is in the best interests of the children and which is approved by both parents. Your attorney or Family Court Counseling Service should be able to give you current advice on the current range of placement options, which have been used successfully in the courts in the county in which the case is pending.
If you cannot make an agreement with your spouse concerning custody, placement and other issues involving your children, mediation is appropriate. If that doesn't work, a custody study may be necessary. While services and procedures can vary depending on the county handling your case, disputed child custody and placement matters are eventually referred to Family Court Counseling Service by the Family Court commissioner's Office. There, the parents first attend an orientation session so that the Family Court Counseling procedure is explained to them, and then the case is assigned to a mediator. The mediator is neutral, and will attempt to resolve issues of legal custody and placement with both parents. While there is a charge made by Family Court Counseling Service for its services, the charge is nominal compared to the significant amount of cost and expense that is avoided when custody and placement issues are resolved in this fashion. The mediator will normally draft a "settlement" agreement with respect to the agreement reached by the parties concerning custody and mediation. This agreement is then sent to the parties, their attorneys and to the court and it becomes a part of the final settlement agreement in the case, if the entire case is settled. If a portion of the case remains to be tried, i.e. such as maintenance or property division issues, at least the custody and physical placement issues do not have to be tried, which means that there is a significant saving in time and expense by resolving this aspect of the case.
