Physical and Legal Custody Battles

by Michelle A. Kenny, Esq.

Parents often wonder how their divorce or separation will affect their children, and what type of agreement or schedule of parent-child contact will best suit them in a difficult situation. While agreements and court orders regarding visitation vary, often times an agreement made between the parents has the best likelihood of success and will provide children with the stability and confidence to navigate through the transition of divorce. In order to assist parents in the daunting task of negotiating and agreeing upon a schedule that makes sense for their lives, parents can begin by reviewing the criteria that a court will consider in making determinations of parental rights and responsibilities, which include both “physical” and “legal” custody.

Physical custody refers to the rights and responsibilities to provide routine daily care and control of the child, subject to the rights of the other parent. Legal custody refers to the rights and responsibilities to determine and control the decision-making for the child, beyond daily care, which includes decisions regarding issues such as education, medical or dental care, religion and travel arrangements. Both physical and legal custody of a child may be shared by the parents, but only by agreement. That is, the family court will not “order” joint physical or legal rights and responsibilities, but rather must choose one parent to maintain primary physical and legal rights and responsibilities. This does not mean that one parent will be denied contact with the child, but only that one person is primarily responsible for the daily care and legal decision-making for the child. The court has the discretion to order that one parent maintain primary physical custody of the child, while the other maintains primary legal custody, though an arrangement dividing the primary roles is not that common.
Assuming the parents are unable to agree as to a schedule and parenting arrangement, the court will hear evidence and determine what is in the best interests of the child. The factors to be considered include:

The relationship of the child with each parent and the ability and disposition of each parent to provide the child love, affection and guidance;
The ability and disposition of each parent to assure that the child receives adequate food, clothing, medical care, material needs and a safe environment;
The ability and disposition of each parent to meet the child’s present and future development needs;
The quality of the child’s adjustment to the child’s present housing, school and community and the potential effect of any change;
The ability and disposition of each parent to foster a positive relationship and frequent and continuing contact with the other parent, including physical contact, except where contact will result in harm to the child or to a parent;
The quality of the child’s relationship with the primary care provider, if appropriate given the child’s age and development;
The relationship of the child with any other person who may significantly affect the child;
The ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the child where parental rights and responsibilities are to be shared or divided; and
Evidence of abuse, and the impact of the abuse on the child and on the relationship between the child and the abusing parent.

In every new case, the court must decide and address each of the criterion set forth above, yet the outcome of every contested custody matter is highly dependent upon the facts of that particular case and the application of the findings of fact to the factors listed above. If both parents intend to live in the area where the child is accustomed, as a generalization, most parents satisfy factors 1-4, as well as 6 and 7, with the primary dispute revolving around factors 5 and 8.1 Interestingly and not surprisingly, factors 5 and 8 revolve around a parent’s ability to foster a positive relationship between the child and his or her other parent, and the parents’ ability to communicate and cooperate. Given the emotional baggage associated with divorce, it is evident why these factors are often debated. Despite the various disagreements between parents, the Vermont State Legislature has codified the presumption that it is in a child’s best interest to have maximum contact with each parent to encourage and develop a relationship with each parent. While there are exceptions to be applied in extraordinary circumstances, both parents and child are entitled to adequate time with each parent, no matter what the parents think of each other.

It is often suggested that a mother will be awarded primary rights and responsibilities based upon the simplistic notion that “she is the mother.” While it is true that mothers were generally awarded custody on the basis of gender, this philosophy is outdated and inconsistent with decisions of family courts over the previous several years. In fact, the court is prohibited by statute from applying a preference for one parent over the other because of the gender of the child or parent. The decision of the court must be based upon the factors listed above, not based upon the gender of the parent. Absent extraordinary circumstances, and assuming both parents are capable of caring for their child, most decisions made by judges involve nearly a 50/50 division of time with each parent.

If you are attempting to work out an agreement regarding parental rights and responsibilities and parent/child contact, the best advice is this: If you, as parents, can agree on what is best for your children, it probably is. If an agreement cannot be reached, the court is available to assist you.