What is Custody and Visitation Law?

Understanding your right to see your child

By Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on January 24, 2023

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When and where you see your children is likely one of your primary concerns as a parent. If you are going through a divorce or are the unmarried parent of a child, you may have many questions about custody and visitation. You want what is best for your children, and having a relationship with them is essential to you. Parents can work together to make plans for their children or ask a court to help them. Either way, custody arrangements must be approved by the court, and parents often find lawyers helpful in their discussions. The following information is designed to help you understand the basics of custody and visitation so you feel confident talking to a lawyer.

Custody and Visitation Law – What You Need to Know

  • While similar, child custody and visitation rights have some essential differences worth noting.
  • Custody refers to the right and responsibility to make decisions for your child and have your child live with you.
  • Visitation is the time you spend with your child and is frequently at issue when one parent is not granted physical custody of their child.
  • A family law attorney will work with you to determine the child’s best interests regarding visitation and types of custody rights.


Custody and visitation are often used together, but they are not the same thing. Custody refers to the right and responsibility to make decisions for your child and have your child live with you. Visitation is the time you spend with your child and is frequently at issue when one parent is not granted physical custody of their child.

Custody Generally

“Child custody” is an umbrella term that includes physical and legal custody. Children almost always live with a parent who has physical custody and makes day-to-day decisions about the kids’ lives. Physical custody is often granted to one parent while the other is granted visitation and parenting time. On the other hand, legal custody is usually shared between parents. Through joint legal custody, both parents are responsible for decision-making about their kids’ welfare. If one parent is shown to be unfit, then the court may give the other parent sole legal custody. When a parent has sole legal custody, they do not need to consult with the other noncustodial parent when making major decisions about the child’s education, religious instruction, or medical decisions.

Making Custody Determinations

The process for making custody determinations varies depending on whether the parents are going through a divorce or have never been married.
  • Divorce. Custody is usually addressed during a couple’s divorce proceedings. The parents have the option of coming to a custody agreement with the help of their lawyers or mediators. If the parents are unsuccessful, their divorce judge will make the final determination, usually according to a state statute.
  • Unmarried parents. When the child’s parents were never married to each other, most state statutes require that the mother be awarded sole physical custody. If the child’s father takes steps to establish paternity (discussed below), the custody determination will proceed much as it does in a divorce. The parents can agree, or a family court judge will decide based on the child’s best interests.


When parents do not share physical custody, the non-custodial parent will usually be granted visitation. Like custody, the parents can agree on a visitation plan, or the court can create one based on statutes and the children’s best interests. A visitation plan is finalized in the court’s visitation order. In some jurisdictions, parents may be required to create a parenting plan, which is helpful even when not needed. A parenting plan can establish the children’s principal residence and the non-custodial parent’s visitation schedule. The plan may also address activities the children are involved in and who will pick them up and drop them off. Special days, such as Mother’s and Father’s Day and birthdays, can also be addressed in the plan, so everyone knows what to expect. It might also be helpful to include modification instructions in the parenting plan, so if a conflict arises, there is already a plan to address it.

Establishing Paternity

Custody and visitation laws most often concern a child’s biological parents, so it is sometimes necessary for an unmarried father to establish that he is the child’s biological father. Paternity can be established voluntarily through an agreement of both parents, or a court can establish it through a paternity lawsuit.
Federal regulations require all states to offer unmarried parents the opportunity to establish paternity voluntarily by signing an acknowledgment. Often, this happens at the hospital when the baby is born, but it doesn’t have to happen then. Some states have stricter requirements than others, so if you would like to establish your child’s paternity voluntarily, you should make sure you know what your state requires.
Paternity lawsuit
Either parent can file paternity lawsuits, and they are usually filed when one parent wants the other to pay child support or grant visitation. The court can look at DNA tests, the child’s birth certificate, or circumstantial evidence in making its determination. For example, if the alleged father acts as if he is the child’s father, this can be used as circumstantial evidence.

Common Questions for an Attorney

Below are some common questions you might want to consider when meeting with an attorney for the first time.
  1. How can I get custody of my child?
  2. What custody issues should I be aware of?
  3. Does a court need to approve our custody and visitation plan if we already agree to it?
  4. Can I change the court’s custody determination?
  5. What factors go into determining the best interests of the child in custody and visitation cases?
  6. Does a parent have the right to deny visitation?
  7. What if a parent doesn’t show up for visitation?

Finding the Right Attorney for Your Needs

It is crucial to approach the right type of attorney—someone who can help you through your entire case with expert legal advice. To do so, you can visit the Super Lawyers directory and use the search box to find a lawyer based on your legal issue or location. Many accomplished family lawyers regularly fight on behalf of parents and their parental rights. Whether you seek joint physical custody or some other type of arrangement, these attorneys are waiting to answer your call. To help you get started, you may want to consider looking for a family law lawyer specializing in custody and visitation. Fathers seeking to establish paternity might also consider looking for a lawyer specializing in father’s rights.

Should I Talk to a Lawyer?

Child custody and visitation issues can be complicated since laws vary by state. Emotions and complex relationships can further complicate custody cases. Adding court orders and custody orders on top of that can lead to stress and volatility in one’s life. A lawyer will help you navigate your emotions and understand the law, and they will be able to help you negotiate custody arrangements that are in the child’s best interests. A lawyer will anticipate potential problems with your case and advise you on how to approach them. Your lawyer will also keep track of deadlines and file all the paperwork with the necessary courts and agencies, giving you fewer things to worry about.

What do I do next?

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