- When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?
- Do I have to pay child support if my ex keeps me away from my kids?
Yes. Custody and visitation should not be confused with child support. Every parent has an obligation to support his/her children. When one parent has visitation rights (but not physical custody), he or she is usually ordered to pay some child support to the other parent. The parent with physical custody is ordered to meet the visitation rights through the custody order itself.
With one narrow exception, no state allows a parent to withhold visitation because the other parent owes support, or to withhold support because of disputes over visitation. The exception? If the custodial parent disappears for a lengthy period so that no visitation is possible, a few courts have ruled that the non-custodial parent's duty to pay child support may be considered temporarily suspended.
- I have sole custody of my children. My ex, who lives in another state,
has threatened to go to court in his state and get the custody order
changed. Can he do that?
All states and the District of Columbia have enacted a statute called the Uniform Child Custody Jurisdiction Act, which sets standards for when a Court may make a custody determination and when a court must defer to an existing determination from another state. Having the same law in all states helps standardize how custody decrees are treated. It also helps solve many problems created by kidnapping or disagreements over custody between parents living in different states.
In general, a state may make a custody decision about a child only if it meets one of these tests (in order of preference):
- The state is the child's home state. This means the child has resided in the state for the six previous months, or was residing in the state but is absent because a parent took the child to another state. (a parent who wrongfully removed or retained a child in order to create a "home state" will be denied custody.)
- The child has significant connections in the state with people such as teachers, doctors and grandparents, and, in the words of the act, "Substantial evidence in the state concerning the child's care, protection, training and personal relationships." (a parent who wrongfully removed or retained a child in order to create "significant connections" will be denied custody.)
- The child is in the state and either has been abandoned or is in danger of being abused or neglected if sent back to the other state.
- No other state can meet one of the above three tests, or a state that can meet at least one test has declined to make a custody decision.
If a state cannot meet one of these tests, the courts of that state cannot make a custody award, even if the child is present in the state! In the event more than one state meets the above standards, the law specifies that only one state may make custody decisions. This means that once a state makes a custody award, any other state must keep its hands off the matter.
- I have sole physical custody of our children. Several times my ex has
not returned the kids on time after taking them for a visit, and I'm scared
one day he won't return them at all. What are my rights as the custodial
In most states, it's a crime to take a child from his or her parent with the intent to interfere with that parent's physical custody of the child (even if the taker also has custody rights). This crime commonly is referred to as "custodial interference." in most states, the parent deprived of custody may sue the taker for damages, as well as getting help from the police to have the child returned.
- I've heard that mediation is the best approach to solving child custody
matters. Things are so bitter between my ex and me that it's hard to see us
Sitting down together to work things out. How can mediation possibly work?
Mediation is often used to help a divorcing or divorced couple work out their differences, especially over custody and visitation disputes. Some divorce attorneys and mental health professionals employ mediation as part of their practice. Several states require mediation in custody and visitation disputes and a number of others allow courts to order mediation.
In California and a few other states, if the parties do not reach agreement, the mediator is usually asked by the court to make a recommendation. In most states, however, the mediator plays no further role if the parties can't agree. Mediators are very skilled at getting parents who are bitter enemies to cooperate for the sake of their children.
The more parents can agree on the details of co-parenting, the better it will be for them and their children. Mediators are skilled at getting the parents to recognize this fact and then move forward towards negotiating a sensible parenting agreement.
If there is a history of abuse or the parents initially cannot stand to be in the same room with each other, the mediator can meet with each parent separately and ferry messages back and forth until agreement on at least some issues is reached. At this point, the parties may be willing to meet face to face.
The parent with physical custody is generally in control regarding what is reasonable. This need not be bad if the parents cooperate in making sure the kids spend a maximum amount of time with each parent. Unfortunately, it often translates into very little visitation time with the non-custodial parent, and lots of bitter disputes over missed visits.
To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan(known as a Parenting agreement), which sets the visitation schedule and outlines who has responsibility for decisions affecting the children.