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Custody of Minor Children in a Divorce: The Basics


Both parents must decide on custody of minor children under the age of 18. Divorce courts are very concerned regarding the well-being of any children born naturally to both parents or adopted by the parents. If the wife is pregnant, the child should be listed as “one unborn” in the petition and be treated as a born child for purposes of a dissolution of marriage. There are four basic types of child custody recognized under state laws:

1.Sole Physical Custody: Sole physical custody means the children shall reside with and under the supervision of one parent, subject to the power of the court to approve the parent’s plan for visitation rights granted to the other parent.

2.Joint Physical Custody: Joint physical custody means that each of the parents shall have significant periods of physical custody. In other words, the physical custody of the children shall be such that both parents have more or less continuing contact with the children.

3.Sole Legal Custody: Sole legal custody means that one parent shall have the right and the responsibility to make decisions relating to the health, education and welfare of the children, subject of course to the visitation rights of the other parent. Although courts favor joint legal custody, sole legal custody continues to be the leading type of custody for most children when there is a marital breakup.

4.Joint Legal Custody: Joint legal custody means that both parents share the right and the responsibility to make decisions relating to the health, education and welfare of the children. The law presumes that joint legal custody is in the best interest of the minor children when the parents have agreed to joint legal custody and submitted a workable “parenting plan.” However, joint legal custody is not for everyone. It requires the parents to cooperate and lay aside all differences for the benefit and interest of the children.

Visitation Rights

In recent years, lawmakers have come to recognize that visitation rights are not something that can be easily made into law. Nonetheless, law states that any person having an interest in the welfare of the children is entitled to reasonable visitation. What is reasonable in one circumstance is not necessarily reasonable in another; therefore, discretion is left with the parents to implement standards of visitation that are reasonable under their circumstances. This would include grandparents and others.

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