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Child Custody in a Divorce Proceeding - The Process of Fighting for Your Rights in a Custody Battle

Oct 28, 2015 @ 11:48 AM — by Michael Green

The battle of child custody can be one of the most difficult issues in divorce.  If the parties cannot agree upon terms of custody up front, they may have no choice but to litigate the issue with motion practice, child custody experts and a trial as to the issue.

There are two types of custody, legal and physical.  Generally, legal custody will be shared by the parties, so both parties will have an equal say over the health, education and welfare of the child.  However, if one party is deemed to be incompetent as a parent or must have supervised visitation with the child legal custody may not rest with that parent.  Often these situations arise because the parent is a drug or alcholol problem or has a history of mental illness or other behavior that is inappropriate.

As to physical custody, you may have sole, shared or the more common physical custody where one parent is the parent of primary residence and the other parent is the parent of alternate residence. 

The Courts have been evolving over the last ten years, so what was deemed to be standard or traditional has changed dramatically as more and more parents opt or wish for shared physical custody.  Most families have both parents working and more and more families both parents wish to spend as much time with their children as possible.  If the parents can agree or if they live close to where the children are going to school, shared physical custody may be an option or a litigated position.

If the status quo has been where one parent was primarily nurturing the children and that parent also has a more flexible work schedule, that parent may have a better chance at arguing that they should be the parent of primary residence. 

If the parties cannot agree on the issue of child custody, the issue will be litigated, meaning, it will ultimately be decided by the Court.  Parties may engage child custody experts to determine in a best interest analysis what is in the best interest of the child as regards custody.  The process is costly and time consuming and parents must understand going in that it is an arduous process.  Regardless, if the parties cannot agree, then motion practice and/or trial is necessary for the Court to determine what kind of physical custody the parties will have of their children. 

At Green & Associates, we can help you navigate the difficult issue of child custody so that you are prepared and ready for what may come your way in the litigation process.  Whether you require a post-judgment motion or the litigation of the issue of child custody during the divorce, we can help you understand the process and fight this very important battle for you.

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