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Family Law

Child Custody and Visitation Frequently Asked Questions


Note: This summation is taken from CA civil courts. The information below applies to all states, and represents excellent advice for individuals going through divorce and custody procedures.

Q: If we have joint legal custody, do we have to agree on every decision?

A: No. With joint legal custody both parents have the right to make decisions and either parent can make a decision alone. But to avoid having problems and ending up back in court, both parents should communicate with each other and cooperate in making decisions together.

Q: If we have joint physical custody, do our children have to spend exactly half the time with each of the parents?

A: No. If there is joint physical custody, usually the children spend a little more time with 1 parent than the other because it is too hard to split the time exactly in half. When 1 parent has the child more than half of the time, then that parent is sometimes called the "primary custodial parent."

Q: I do not want my child to change houses every day. But I want to see my child as much as possible. What is the best schedule?


A: We do not know how long young children can go without seeing either parent, how many transitions children can handle, or how long children should stay in each household. We do know that children can get attached to caregivers when they have good relationships that are consistent over time.

In many instances, it may make sense for infants and toddlers to be able to see each parent regularly, especially if a child is safe with either parent. Younger children's concept of time is different from that of older children, and they often need more consistency. It is generally a good idea to have a regular schedule and stick to it. Most children benefit from having a routine they can count on.

When you make a schedule, think about the quality of the relationships. Not just the relationship between the children and each parent, but also between the parents and between the children and any other caregivers.

Q: What if the child is not feeling well when it is time to change homes?

A: It is hard when a child is not feeling well. If it is time for the child to go from 1 home to another, should the change be put off? Unfortunately, there are no easy answers to this question. Clearly, the age of the child and the seriousness of the illness need to be taken into account. Also, the distance between the 2 homes will be a major factor in decision making. Some parents use the standard that if the child is well enough to go to school, he or she is well enough to move from 1 home to another. However, deciding whether the child should go to school or not is often difficult, so that standard is not too helpful.
Here are some considerations:

Both parents have not just the right, but an obligation to care for a child while the child is ill. It is unreasonable to expect the primary custodial parent to take over all care of a sick child, just as it is unreasonable to deny parenting time due to minor illnesses. The child's feelings count. It is typical for a sick child to be cranky and unhappy; moving him or her to the other home may only intensify these feelings. On the other hand, children are prone to "cabin fever" just like adults. A change of environment may very well make a child feel better and help take his or her mind off their illness. When parents share care of an ill child, clear communication is crucial. If the child is on any kind of medication, knowing when the child took his or her last dose or when the next dose should be given is important information that parents should convey when exchanging the child. Both parents may want to keep a simple log of what medication the child is taking and what the medication schedule is.


If parenting time is missed due to sickness, the noncustodial parent probably may want to make the time up. Reasonable "illness contingencies" may be written into every parenting plan to provide guidance for these situations. When adding these contingencies to your parenting plan, you need to take into account that each parent's situation (travel, work schedules, etc.) is different.

Q: What if the parents live in different states?

A: If you and the other parent live in different states and you are trying to resolve custody issues, you should work with lawyers who have experience with these types of cases.
All states of the United States and the District of Columbia have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This law sets standards for when a court may make a custody decision and when a court must accept an existing decision from another state. In general, a state may make a custody decision about a child if 1 of the following is true:

The state is the child's "home" state. This means the child has lived in the state for the last 6 months, or was living in the state but is not there because a parent took the child or kept him or her out of the state. The child has significant connections with people in the state, such as teachers, doctors, and grandparents. It can be proven that the child's care, protection, training, and personal relationships are based there. 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 1 of the 3 tests listed above, or a state can meet at least 1 of the tests but has declined to make a custody decision.


A custody decision can only be made in 1 state. Once the first state makes a custody decision, another state cannot make another "initial" decision or modify the existing order.

Having the same law in all states helps achieve consistency in the treatment of custody decisions. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.

Q: The other parent kidnapped our child and left the country. What can I do?

A: When a child who is a U.S. citizen is kidnapped and taken to another country, the State Department's Office of Children's Issues works with U.S. embassies and consulates throughout the world to help the child and the parent looking for the child. But even when a child is taken across international borders, child custody disputes are private legal matters between the parents, and the State Department has little or no power.

If your child is at risk of being abducted by the other parent, it is very important that you have a clear custody order that specifies what the other parent can and cannot do in terms of traveling with your child. But even if you have a court order, U.S. laws and court orders are not usually recognized in foreign countries and therefore are not directly enforceable abroad.

Fortunately, the Hague Convention, which has been signed by many countries, is an international treaty that applies to child abductions. The countries that are parties to the convention have agreed that, with a few exceptions, a child who is a resident in 1 country that is a party to the convention and who is removed to another country that is also a party to the convention against a custody and visitation order must be promptly returned to the country of residence. Click for information on which countries have signed this agreement.

The Hague Convention and cases of international abduction are very complicated. There is information online to help you, but if you can, talk to a lawyer who has a lot of experience with international abduction cases. Your local District Attorney's Office may also have a Child Abduction and Recovery Unit that can help you or give you resources in your area.

Here are some websites with very helpful and complete information on child abduction:

The U.S. Department of State's Office of Children's Issues website Provides information about international abduction. This site provides information on how to look for a child abroad, how to use the criminal justice system, and how to invoke the Hague Convention by submitting abduction applications, as well as information about the law. A Family Resource Guide on International Parental Kidnapping A guide from the Office of Juvenile Justice and Delinquency Prevention of the U.S. Department of Justice, provides detailed information on prevention and searching for your child, checklists for what to do in case of kidnapping, resources, and much more.


Q: Is child support related to custody and visitation?

A: A child support order is separate from a child custody and visitation order. So you cannot refuse to let the other parent see the children just because he or she is not paying the child support he or she owes. And you cannot refuse to pay child support just because the other parent is not letting you see your children.

But child support and custody are related because the amount of time each parent spends with the children will affect the amount of child support. Click for more information about child support.

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