What Is Custody and Visitation Law?

Custody and visitation law is the legal framework governing parental responsibilities and decision-making authority. Issues include legal custody, physical custody, parenting time, visitation rights, and child support. Family courts can award sole or joint custody based on the child’s best interests. Parents can draft their own parenting plans and custody agreements, or use family mediation to determine the primary caretaker and to modify custody.

Parents often find family law attorneys helpful in their discussions. The following information will help you understand the basics of custody, visitation, or parenting time, so you feel confident talking to a lawyer.

Are Custody and Visitation the Same?

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

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. But regardless of the label, custody and visitation are two separate things.

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What Is the Difference Between Legal Custody and Physical Custody?

“Legal custody has to do with important decision-making about a child’s life, such as education, healthcare, or religious decisions,” says Capistrant.

“In some states, the presumption is that legal custody should be jointly shared between the parents, unless there’s been domestic violence or some other reason that parents can’t make joint decisions.”

If the court finds one parent unfit, it will grant 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 and 40 other states have passed laws that make them income-share states. What determines the amount of child support under an income-sharing model is the actual number of overnights, or overnight equivalents, each parent receives 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 can reach a custody agreement with the help of their lawyers or mediators. If the parents are unsuccessful, the judge in their divorce case will make the final determination, usually in accordance with a state statute.
• Unmarried parents. When a child’s parents were never married, many state statutes default to granting the mother sole legal and 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.

Legal custody has to do with important decision-making about a child’s life, such as education, healthcare, or religious decisions… Physical custody has to do with where the child primarily resides… Parenting time may help determine what the physical custody label is going to be, but the custody label is separate from the parenting time.

Establishing Paternity

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 between both parents, by signing a Recognition or Declaration of Parentage, or by a court through a paternity lawsuit.

Voluntarily Establishing Paternity

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 the parents’ agreement or court action.

Often, this happens at the hospital when the baby is born, but it doesn’t have to. 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 a paternity lawsuit. These suits are usually filed when one parent seeks to have the other parent 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. 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. As with custody, 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 to make religious decisions jointly. 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, and there are other folks, such as therapy groups or child specialists, who can do the work of creating parenting plans,” says Capistrant.

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. 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.”

Mandatory Mediation for Child Custody Disputes

Some states require parents to try to resolve custody and visitation disputes through mediation before a family court judge can hear the case. The following table summarizes which states require mediation.

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.

To get started, visit the Super Lawyers directory to find a family law attorney specializing in custody and visitation.