As a part of the divorce process, the court will issue orders regarding custody and visitation. Generally, the parents can work out arrangements on their own but must submit their proposal to the court for approval (so that there’s no risk of undue influence, duress, or exploitation). Because custody and visitation are regulated under state law, the specific details (and even the terms used) can vary from jurisdiction to jurisdiction. However, the concepts of custody and visitation are essentially the same nationwide.
Custody addresses the issue of control or oversight. A parent who is granted custody is legally afforded certain rights to control aspects of the minor child’s life. Every state recognizes two different types of custody: physical and legal. A wide range of factors go into the determination of physical and legal custody, but the overarching concern is the “best interests of the child,” which means that most factors involve the ability of each parent to give the child a safe, healthy, and stable environment. A court may also take the wishes of a child into account, but typically only if the child is 12 years of age or older.
Physical custody refers to where the child spends their time. For much of the modern history of divorce, courts have most often granted “primary” custody (also referred to as “sole” custody”) to one parent, ordering that the minor child is to spend most of their time in that parent’s household. In situations where the court grants primary custody, the other parent is typically awarded fixed “visitation” or “access” rights, allowing them to have the child visit in their home on a regularly scheduled basis.
In recent years, though, courts across the country have been more willing to grant “joint” or “shared” physical custody, where the child spends an equal amount of time in each household. Joint physical custody may take the form of alternating weeks, or it may require a detailed schedule, depending on the circumstances (e.g., the parents’ work schedules or the location of the parents’ homes in relation to after-school sports and other activities).
Legal custody addresses parental rights to participate in decisions about the child’s well-being. Legal custody commonly involves making decisions about education, medical needs, religious training, and extracurricular activities. Courts prefer to grant joint legal custody and typically do so absent compelling reasons to do otherwise.
Visitation refers to access to minor children by a non-custodial parent. If the parties have full joint legal custody, where the child spends equal time with each parent, there’s typically no need for a visitation order. Otherwise, the visitation rights of the non-custodial parent are set by court order.
Fixed Visitation. A common form of visitation is “fixed” visitation, where the parents follow a set schedule. For example, the non-custodial parent might have the child on alternating weekends, alternating holidays, and a block of time during summer vacation.
Supervised Visitation or No Visitation. In circumstances where there are concerns about the safety or well-being of the child, the court may order supervised visitation or may choose not to allow visitation at all. Common situations where supervised or no visitation may be ordered include cases where:
Virtual Visitation. In a situation where physical visitation is prohibited, or where parents live far apart, the court may allow virtual visitation via videoconference. Virtual visitation may be either monitored or unmonitored, depending on the circumstances.