Parents vs Courts: Who Decides Child Custody?

Child custody and visitation are always difficult and delicate topics during a divorce. However, for couples going through a comparably amicable divorce, the good news is that there is no legal requirement for the courts to actually determine visitation and custody rights.

When spouses come to their own agreement regarding visitation and custody, it often works out much better for both parents and children. Typically, there’s less acrimony, fear, uncertainty, and bitterness when the children’s parents can find a workable outcome, rather than letting the courts decide.
 

When Parents Decide Custody & Visitation

Contrary to what many believe, it is not uncommon for divorcing spouses with children to cooperate and compromise on a solution for child custody and visitation rights. Once parents reach an agreement outside of court, it must be formally put in writing and submitted to a judge for review.

If the judge approves the agreement that the parents have made on their own (which they will, unless the agreement is clearly unfair to a particular parent or child) the custody and visitation agreement becomes an official court order, which both parents must follow.
 

Using A Mediator

When parents need custody orders, but they can’t agree on a proposed arrangement, they must try mediation before a judge will decide the issues for them. In mediation, a mediator meets with both parents to help them identify issues and find a way to reach an agreement.

If mediation is successful, and the parents agree on a custody arrangement, the judge will sign their agreement and it will become a court order. If the parents still can’t agree after mediation, they have to go to a hearing where a judge will decide.
 

Court Decisions

The last and least desirable scenario is when parents cannot come to any agreement on child custody and visitation rights–even with a mediator–and instead a judge must evaluate the situation and make a decision based on the bests interests of the child.

While not ideal, sometimes a court decision is the only way for child custody and visitation rights to be decided. This is most common in acrimonious divorces where both spouses are angry and unwilling to negotiate or compromise.

Sadly, in these situations, the children are typically the most affected party, and are frequently placed at the center of a conflict that they have absolutely no responsibility for.
 

Using A Lawyer

Even if both spouses are in total agreement about custody and visitation rights, it’s a good idea for each parent to retain their own independent attorney and have them help review and formalize the agreement before submitting it to the court.

For additional help with divorce, child custody, or visitation rights issues, please contact us today to discuss how we can help you.