EveryBody's Guide to the Law

may award custody to the grandparents or to an aunt and uncle who are willing to provide the
child with a stable, loving home. If no suitable relative can be found to take care of the child,
and the parents are declared unfit, the child becomes a ward of the court and is placed in a
public institution or foster home.
Once the judge has awarded custody to one parent, the other parent can return to court at
a later date and present new evidence showing that the parent having custody is no longer fit
to care for the children. Testimony of neighbors may establish, for instance, that young children
are frequently left unwashed and unfed, and that their house is unlivable. The judge can
then take custody away from one parent and award it to the other.
Custody orders frequently prevent the custodial parent from moving out of the county or
state unless the court’s permission is first obtained. A parent who violates such a court order is
in contempt of court, subject to a possible fine or jail sentence, and even loss of custody. If the
custodial parent’s reason for moving out of state is legitimate, such as his employer has promoted
him or her and the job requires a move out of state, the judge generally will allow it. But
if the move to a new and faraway state is solely to keep the noncustodial parent from seeing
the children, the request to move the children to a new state will be denied.
Many times the child custody battle will be resolved by awarding both parents “joint legal
custody.” Joint legal custody generally relates to decisions involving the child, such as those
affecting which school the child goes to or medical and dental treatment the child receives. In
joint legal custody, each parent has an equal say in these matters. Even so, one parent will
have physical custody of the child most of the time. True joint physical custody, where each
parent has physical custody of the child for six months of the year or alternate weeks, is rare
indeed.
Visitation Rights
If you don’t get custody of your children, the judge usually will give you reasonable visitation
rights. Again, a judge makes the decision only if you and your spouse can’t decide for yourselves
about visitation. Visitation rights may consist of one night a week, every other weekend,
one month during summers, and alternating major holidays (one parent gets the kids for
Thanksgiving one year, say, and for Christmas the next year).
If your ex-spouse refuses to let you visit your children, have your lawyer call his or her
lawyer, if he or she still has one; otherwise, your lawyer should call your ex-spouse directly. If
that doesn’t change your ex-spouse’s behavior, you’ll have to return to court to enforce the visitation
order. This can be a costly procedure, emotionally as well as financially. To punish a
parent for refusing to allow the other parent to visit the children, the judge might suspend all
support payments until visitation is permitted. And if the custodial parent continues to refuse
the other parent his or her visitation rights, the judge could well give custody of the children
to the other parent.
Marriage, Divorce, and the Family 21