No one wants to get divorced, and in most cases the parents talk to a catholic priest 24 7 and can at least agree that they want the best for their children. The issue of custody is often seen as a task disagreement, each party demanding more time with the kids than they can reasonably expect. I am here today to tell you that there is a secret to custody law.
1. Read The Will
This is the most important legal advice I can give you. Read your own Will. If you have children and a Will, then read it. Sit down with a notepad and pen by your side before you sign the document. Get familiar with all of the terms. Having a more comfortable relationship with your estate planning attorney will help you feel more at ease when negotiating custody issues. If your attorney is willing to sit down with you, they can be a great resource in helping you make decisions in advance of any court proceeding which may arise.
2. What is a “Legal Guardian”?
A. The Legal Guardian is, in almost all cases, the person who has physical custody of the child(ren).
B. Legal Guardianship may be awarded to persons without custody of child(ren), but that situation is rare and frowned upon by courts. If legally possible, you should secure custody of your children before pursuing any legal guardianship action.
C. A Legal Guardian has all of the rights and responsibilities which would fall upon a parent if they had been awarded legal custody of their children. This can be confusing for some people and after reading this entire article you will be able to make sense out of this statement!
3. “There are two types of custody orders which are in effect until……”
The definitions provided in the previous paragraph must be happening when one is reading this sentence. There are two types of custody orders which are in effect until……
A. Joint Custody: This situation occurs when all three parties agree that their children will reside with them fifty percent of the time, twenty-five percent of the time and the remaining twenty-five percent will be divided the other way. The schedule may be adjusted as agreed upon by all parties involved. Joint Custody does not have to be 50/50, but it is a very rare exception for it to not take place this way.
B. Joint Physical Custody: This situation occurs when one party is awarded physical custody for the entire time that the child(ren) is under the care of that person. This can include weekends, holidays and every other day of the week.
C. Sole Custody: In this situation a person is awarded sole physical custody of their children. This may not necessarily mean that they have sole legal custody as well. For example, if they are awarded sole legal custody then they are able to make all decisions regarding their children’s education and medical decisions, even in cases where the other parent(s) might disagree with them.
4. Cohabitation Issues
A. If a person has legally separated from their spouse, but are still cohabitating, then they may not be awarded custody of their children without providing the court with proof that the living situation is causing harm to the child(ren).
B. The court will look for any evidence that demonstrates that allowing a parent to have custody of their children would jeopardize their welfare. This could include having access to a convicted felon or even an arrest record. The courts will also consider issues surrounding drug use and abuse, alcohol abuse or domestic violence. If there is evidence of any of these situations then custody will most likely be withheld.
C. The court will not award sole physical custody to a person who is cohabitating with another individual unless they are married. This means that the other person will have most of the legal and physical rights regarding their children while they reside in the other person’s home.
5. A parent may be awarded custody of their children, but not be awarded sole physical custody
A. There are limited instances where a parent will be awarded sole exclusive physical custody for all of that person’s time with their children, but not all parents will see this award granted to them.
B. If one parent has a more favorable schedule than the other party, then joint custody may be awarded to that individual. If a parent is working out of town or traveling constantly for work, then they may earn sole physical custody.
6. Sole Legal Custody
Sole legal custody is granted to one parent or guardian when they are the only person who will make any major decisions regarding their child(ren’s) education, medical treatment and overall welfare while they are growing up.
The other party might have joint physical custody of their children and even live with them part time, but that party cannot make any major decisions without consulting the person who has been awarded sole legal custody.
Sole legal custody does not have to go hand in hand with sole physical custody. After all, the other party may have been awarded joint physical custody of the children.
Sole legal custody is only granted to one party for good reason and cannot be modified by the court unless there are extenuating circumstances which might affect the well-being of their child(ren).
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