The Basics of Custody

Child custody consists of two basic “types” of custody, i.e. physical custody and legal custody. Physical custody is where the child lives or spends overnights. Legal custody is the decision making process; this includes medical, educational and religious decision making. These two together are what makes up the majority of issues that parents fight about in court.

A child custody action can be started by either including custody in your divorce complaint or, if you were never married to the other parent, you can file a custody complaint. It is usually a smaller fee to include it as part of your divorce complaint, rather than waiting a year or two down the road and then filing a custody complaint on its own. If you and your child’s other parent can agree on where your child/children can live, go to school, spend time with, be around and participate in, you are way ahead of the game. Depending on which county you reside in, you may be required to attend a four (4) hour seminar on child development, adjustment to divorce and suitable parenting plans. Then, you may be required to meet with a mediator to try to resolve things outside of court. This is your opportunity to be heard – it’s just you, your child’s other parent and the mediator. If you reach an agreement at mediation, the mediator will prepare a Memo of Understanding. The Memo is not a legally binding document and is not signed. It is a summary of the agreements reached. For your Memo to become legally binding, you must take it to your attorney or if you don’t have an attorney, inform the court that you wish to enter it as an agreed Order, pro se (meaning that you represent yourself and you don’t have an attorney).

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