What is Custody and Visitation Law?
Understanding your right to see your childBy Super Lawyers staff | Reviewed by Canaan Suitt, J.D. | Last updated on July 10, 2023 Featuring practical insights from contributing attorney Theresa (Traci) Capistrant
Use these links to jump to different sections:
- Are Custody and Visitation the Same?
- What is the Difference Between Legal Custody and Physical Custody?
- When Custody Determinations Are Made
- What is Visitation or Parenting Time?
- What is a Parenting Plan?
- Should I Talk to a Lawyer?
- Attorney FAQs
- Finding the Right Attorney for Your Needs
When and where you see your children is likely one of your primary concerns as a parent. If you’re going through a divorce or are the unmarried parent of a child, you may have many questions about custody and visitation, also called parenting time. You want what is in your child’s best interests, and having a relationship with them is essential to you.
Parents often are able to work together to make plans for their children; in other cases, they may ask a court to help them. Either way, custody arrangements must be approved by the court, and parents often find family law attorneys helpful in their discussions. The following information is designed to help you understand the basics of custody and visitation/parenting time, so you feel confident talking to a lawyer.
Are Custody and Visitation the Same?
Custody and visitation/parenting time are often used together, but they are not the same thing.
Traci Capistrant, a family law attorney at Capistrant Van Loh in Minneapolis, Minnesota notes that “visitation” may be called “parenting time” depending on the state you live in. Regardless of the label, “custody and visitation are two separate things,” she says.
Custody refers to the right and responsibility to make decisions for your child and have your child live with you. Visitation/parenting time is the time you spend with your child and is frequently at issue when one parent is not granted physical custody of their child.
What is the Difference Between Legal Custody and Physical Custody?
“There are two types of custody the court is looking at: legal custody and physical custody,” says Capistrant.
“Legal custody has to do with important decision-making about a child’s life, such as education, health care, or religious decisions. In some states, including Minnesota, the presumption is that legal custody should be jointly shared between the parents—unless there’s been domestic violence, or some other reason that can be articulated showing that the parents are unable to make joint decisions for in the best interests of their children,” she says.
If one parent is shown to be unfit, the court will give the other parent sole legal custody. When a parent has sole legal custody rights, they do not need to consult with the other noncustodial parent when making major decisions about the child’s life.
“Physical custody has to do with where the child primarily resides. If the parents have an equal parenting time schedule, they typically have joint physical custody. But if the child spends more time with one parent over the other, then it may be appropriate for sole physical custody to be with the parent who has the child more.”
Physical Custody and Child Support
Capistrant explains that the physical custody label used to be really important in Minnesota since “the parent who had physical custody is the parent who received child support.”
Now, Minnesota along with 40 other states has passed laws becoming income shares states.
What determines the amount of child support under an income shares model is the actual number of overnights, or overnight equivalents, each parent gets in parenting time or visitation. “So, the ‘physical custody’ label has become less important than it used to be.”
When Custody Determinations Are Made
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 using statutory “best interest” factors. 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, many state statutes default to granting the mother sole legal and sole physical custody. Only after a child’s father takes steps to establish paternity or custody and parenting time, will the custody determination be made, using the same “best interest” factors used in a divorce. The parents can agree, or a family court judge will decide custody based on the child’s best interests.
Custody and visitation laws most often concern a child’s biological parents, so it’s 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, by signing a Recognition or Declaration of Parentage, 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, most often called a Recognition or Declaration of Parentage. Even with this document signed, however, custody and parenting time are still not established. That will still require agreement of the parents or a court action.
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.
Either parent can file a paternity lawsuit. These suits are usually filed when one parent wants the other to pay child support or grant visitation/parenting time.
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.
What is Visitation or Parenting Time?
“Visitation or parenting time is the schedule that is set up for the children to spend time between the two separate homes,” says Capistrant.
“Parenting time may help determine what the physical custody label is going to be, but the custody label is separate from the parenting time,” she adds.
“For example, the mom could have sole physical custody while both parents have equal parenting time. On the other hand, you could have joint legal and joint physical custody, but one parent has only one night per week and every other weekend. The custody and parenting time arrangements don’t have to match.”
When parents do not share physical custody, the non-custodial parent will usually be granted visitation/parenting time. Like custody, the parents can agree on a visitation/parenting time schedule, or the court can create one based on statutes and the children’s best interests. A visitation/parenting time schedule is finalized with a court order.
What is a Parenting Plan?
“A parenting plan is different from either a custody agreement or parenting time/visitation schedule,” says Capistrant. “A parenting plan is when the parties decide they don’t want to identify legal or physical custody. They don’t want to have those labels. They just want to have a plan that breaks down every type of decision.”
Parenting plans are usually around 20-plus pages long, says Capistrant. “It might say, for example, that the parents agree they’re going to jointly make sports decisions for the child. Or it can address religion—they agree they’re going to jointly make religious decisions. Whatever the subject, the parents define how they are going to make those decisions, jointly or by only one parent.”
Regardless of the issues addressed, a parenting plan “seeks to eliminate using custody labels, since that was the cause of fights for so long, and instead goes through the specifics of saying how the parents are going to raise and make determinations for their kids.”
How Are Parenting Plans Enforced?
“Attorneys can draw up parenting plans with clients,” says Capistrant, “and there are other folks, such as therapy groups or child specialists, who can do the work of creating parenting plans.”
Whether they choose to work with an attorney or not, “once the parents have pulled the document together, they will want that parenting plan to be filed with the court. They want to reduce the plan to a court order so that they have the ability to enforce it.”
What happens to the parenting plan if one or both parents move to a different state?
“With parenting plans in Minnesota, there is typically a paragraph at the end that says, ‘In the event this parenting plan has to be put into effect in a different state, then the custody labels will be: X, Y, and Z,” says Capistrant. “If suddenly the parents move to Wisconsin, for example, and Wisconsin doesn’t recognize parenting plans, you’ve at least designated the custody label and they can enforce it that way.
Should I Talk to a Lawyer?
Child custody and visitation issues can be complicated since laws vary by state. A lawyer will help you navigate the law and negotiate custody arrangements that are in the best interests of the child.
A lawyer will anticipate potential custody issues with your case and advise you on how to approach them. They will also keep track of deadlines and file all paperwork with the necessary courts and agencies, giving you fewer things to worry about during the process.
Below are some common questions you might want to consider when meeting with an attorney for the first time.
How can I get custody of a child?
There is legal custody and physical custody, and each type of custody can either be joint or solo between the parents. Custody determinations come down to the court’s evaluation of the child’s best interests in light of the parents’ background and situation. Custody determinations are often made in the context of legal separation or divorce proceedings.
Does a court need to approve our custody and visitation plan if we already agree to it?
Yes. In order to be legally enforceable, any custody or visitation plan that the parents have agreed to must be put in a court order, approved by the judge.
Can I change the court’s custody determination?
If the custody arrangement is working well and appears to be in the child’s best interests, it’s very rare that the court would change a custody order. However, if a change in circumstances no longer makes the custody arrangement beneficial to the child, the court may change the determination. The standard to do so is most often that the child is endangered in the other parent’s care and a full evidentiary hearing (trial) will be necessary.
Does a parent have the right to deny visitation?
No. If there is a parenting time or visitation order, one parent cannot deny the other parent’s visitation or parenting time without legal consequences. The parent who has been denied can get the court to enforce their parenting time. The exceptions include where the child is in danger, which may require an emergency court order.
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.
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