Post by Jim on May 12, 2009 16:29:38 GMT -5
Temporary Custody
De facto (means in fact) custody refers to who actually has custody of the child at this time. This does not carry the weight of the court behind it. In order to formalize custody before you begin litigation, one should file a motion for Pendente Lite (meaning pending litigation) or temporary custody. Temporary custody is subject to review based on the "best interests" of the child standard, to be discussed below. It is not an "initial" award of custody because it is understood to be temporary pending a full hearing. In order to be awarded temporary custody you must file a request for hearing and an order for temporary custody and support along with your Complaint for Custody or Divorce.
Sole Custody
Custody is made up of: legal custody and physical custody. A person with legal custody has the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. A person with physical custody has the child living primarily with them and they have the right to make decisions as to the child's everyday needs. Sole Custody is when both legal and physical custody are given to one parent. The child has only one primary residence.
Split Custody
Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.
Joint Custody
Joint Custody is actually broken down into three categories. Joint Legal custody is where the parents share care and control of the upbringing of the child, but the child has only one primary residence. In Shared Physical Custody the child has two residences, spending at least 35% of their time with the other parent. Additionally, you can make your own special joint custody agreement that is any combination of Shared Physical and Joint Legal Custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.
In order to assure the best interests of the child the court looks very closely at Joint Custody agreements. The most important factor to Joint Legal Custody that is also very relevant to Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child's welfare. If you are constantly fighting over what religion or what school, the court may strike down your agreement. Other factors include: willingness to share custody; fitness; child's relationships with parents; child's preference; ability to stabilize child's school and social life; closeness to parent's homes (primarily a factor during the school year) ; employment considerations (e.g. long hours, extensive travel, etc.); age and number of children; financial status; benefit to parent. Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn't being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any assistance programs. Currently, AFDC and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be exhaustive and the court will hear anything that they believe to be relevant.
