Legal Custody

“Legal custody” is the authority and responsibility for the major decisions concerning the child’s upbringing, including the child’s education, health care, and religious training. Parents share joint legal custody in most cases. In extremely rare cases, the parent having physical custody of the child will have sole legal custody.

Physical Custody

“Physical custody” is what most people are referring to when they are talking about custody.

Physical custody is determined by the best interest of the child. There is no presumption in favor of either parent if a court has not previously entered an order regarding custody. However, one parent normally has an advantage based on how the parents divided child care responsibilities during their relationship. Once a court makes a custody determination, there is a presumption that the custodial arrangement is in the best interest of the child.

Each judge sees this differently. At a minimum, a judge must consider the following factors:

  • The age and sex of the child.
  • The wishes of the child’s parents.
  • The wishes of the child, with more consideration given to the child’s wishes if the child is at least fourteen (14) years of age.
  • The interaction and interrelationship of the child with:
    • the child’s parents;
    • the child’s siblings; and
    • any other person who may significantly affect the child’s best interest. The child’s adjustment to home, school, and community.
  • The mental and physical heath of all individuals involved.
  • Evidence of a pattern of domestic or family violence by either parent.
  • Evidence that the child has been cared for by a de facto custodian.

A judge is not limited to these factors and may consider just about anything else that has an impact on the child. Each judge emphasizes some factors more than others. Having an attorney that regularly practices in front of a particular judge can help you determine what factors are more important to a particular judge.

Custody Modification

The court may modify a custody order if there is a continuing and substantial change in circumstances. Some examples of situations that are indicative of a strong custody case include:

  • The custodial parent is abusing illegal or prescription drugs.
  • The custodial parent has been convicted of a crime.
  • The Department of Child Services determines that the child has been the victim of abuse or neglect in custodial parent’s home.
  • The child witnessed domestic or family violence in the custodial parent’s home.
  • The custodial parent’s conduct evidences a pattern of parental alienation.

Generally, a child’s desire to live with the other parent is not sufficient to support a change in custody. However, a court will always consider the child’s wishes and is likely to give the child’s wishes more weight if the child can explain why the child wants to live with the other parent.

Other situations might support a change in custody and the facts do not always have to be as extreme as the examples set forth above. If you have any questions about a change in custody, it is important to speak to a lawyer because there is no substitute for an evaluation of the particular facts of your case.