The most important decisions that will be made during the divorce process are those affecting the custody and care of children. The paramount consideration that a Court will take into account when making a custody determination is the best interests of the child. This means that the Court will make a determination geared towards protecting the physical, mental, moral and emotional welfare of the child.
When making an award of custody, the Court must consider several statutory factors, including, but not limited to: the needs of the child; the fitness of the parents; the parents’ ability to agree, communicate and cooperate in matters relating to the child; any history of domestic violence; the child’s relationship with the parents and siblings; the parents’ willingness to accept custody of the child; the safety of the child from abuse by either parent; the stability of the home environment; the amount of time each parent spent with the child prior to, and subsequent to the separation; the parents employment responsibilities, and the preference of the child (when the child is of sufficient age and mental capacity to make an intelligent decision).
- Legal custody: Meaning which parent will be responsible for making major decisions affecting the child, including, but not limited to the child’s health, welfare, education, religion.
- Physical custody: Meaning where, or with whom, the child will reside.
Custody can be sole, or joint. Accordingly, if parents enjoy joint legal custody of the child, then both parents will be responsible for making major decisions affecting the child as set forth hereinabove. If only one parent is awarded legal custody of the child then, only he or she will be responsible for making major decisions affecting the child. Likewise, if parents enjoy joint physical custody of the child, the child will reside with both parents equally (or almost equally). If one parent has sole physical custody, the child will only reside with that parent. However in the case of physical custody there is a third parenting arrangement, whereby one parent is named the Parent of Primary Residence. In this scenario the child will primarily reside with the Parent of Primary Residence, and the other parent (sometimes referred to as the Parent of Alternate Residence) will enjoy visitation with the child.