More Child Custody and Visitation FAQs

Q: How is legal custody different from physical custody?

Physical custody is just what the name suggests. The child stays with the parent having physical custody. Legal custody refers to the right to take decisions that can affect the welfare of the child such as medical care, education, religious ceremonies, etc. The parent with physical custody need not necessarily have legal custody. Cases where one parent has physical custody and the other legal custody are not uncommon. Courts can also order the parents to share physical and/or legal custody.

Q: Can a father get custody of the child if the father and mother were actually never married?

In case the parents are unmarried, the law in most states award sole physical custody to the mother unless the father requests for custody. Even if the father requests custody, the courts seldom grant custody to the father in such cases but the father has priority over other relatives of the child and will be awarded visitation rights.

Q: Is it possible to have a custody and visitation agreement reached out of court?

The parents can mutually negotiate and enter into a custody and visitation agreement out court. They can negotiate with each other (or through their attorney) or use mediation, collaborative law process and other alternative dispute resolution mechanisms. The agreement must be submitted to the court and approved by the court. The court will generally approve the agreement unless it appears to be illegal or unfair to one parent.

Q: What are the factors considered when deciding child custody?

The court considers many factors when deciding child custody. The court will also consider the best interest of the child and who is the primary caretaker of the child. In case of older children, the children’s preference too can play an important role.

Q: Can I get the custody of my son’s child? My son and daughter in law have filed for a divorce.

The law has provisions for awarding custody of the children to persons other than the parents. Grandparents, uncles, aunts, close family friends and other can apply to get custody of the children. However they must prove that it is in the best interest of the children that they be awarded custody of the children. Different states use different terminology to describe this type of custody.

Q: Can grandparents be awarded visitation rights to their grandchildren?

A court can on the application of the grandparents grant visitation rights allowing them to visit and spend time with their grandchildren. If either parent interferes with the visitation rights of the grandparents, the grandparents can request the court to enforce their visitation rights. Every state has laws protecting grandparents’ visitation rights.

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