Child custody and visitation is one of the most difficult aspects of getting divorced or splitting up if the parents are not married, especially if one parent wants sole legal custody. Couples frequently come to an agreement pertaining to this issue, either on their own or through mandatory mediation, and if they cannot agree, the court decides for them.
Physical custody (care) is the right and obligation of a parent to have the child live with them.
Legal custody is the right and obligation to make decisions and have full access to information about a child’s upbringing, including school and medical care. In Iowa, joint legal custody where both parents have the right to information and participation in major decisions involving the children is the rule except in rare situations.
The Evolution of Child Custody & Visitation
In the past, Courts traditionally gave mothers physical custody and gave fathers visitation. The courts now recognize that it is usually in the best interest of children to have as much contact with each parent as possible. This has led to a vast increase in shared physical care situations where the children live about half the time with one parent and half the time with the other
Separated parents face many options about custody and visitation.
- Sole custody is an arrangement in which one parent has both physical care and legal custody of a child and the other parent does not have the right to information about the child, participate in decision making and the other parent may or may not have visitation which may be supervised or for limited periods of time. This is very rare.
- Joint legal custody is one parent having the primary physical care of the children and the other parent having visitation. This is the “traditional” method for resolving child custody and care disputes.
- Joint legal custody and shared physical care of the children. Here, the children live with each parent 50% of the time. This is becoming more and more common and is the solution favored by most judges.
No matter what the court orders about who has custody or if it is shared, the court must find that the custodian is a fit and proper person and that custody arrangement, whatever it is, is in the best interest of the children.
If custody is contested, many courts make a decision on a custody arrangement by determining the best interest of the children, including their age and the closeness to the parent who has been their primary caretaker, the physical capability of the parent as well as their mental health, whether or not there is an issue of domestic violence and, depending on the children’s age, what the children’s wishes may be and the purpose for their wish.
Custody and visitation schedules are always subject to change when circumstances affecting the child’s best interests change significantly. The parties can agree to change custody and/or visitation, or, if they cannot, a Petition for Modification, can be filed. Generally, the party who wants to modify custody and/or visitation has to show the court that there has been a major, unanticipated change in circumstances, that it is in the best interest of the child and if physical care is involved, that the parent filing the modification can better meet the needs of the child than the other parent.