CUSTODY
In a divorce with minor children, the parties either have to come to an agreement concerning the legal and physical custody of their children or the Court will ultimately make the determination.
Legal custody is the right to share in the important decisions of the children's lives. It is presumed to be joint unless a strong case is made against it.
If one parent has sole physical custody, they usually decide where the children live, go to church and go to school. There is no presumption for joint physical custody. However, since support issues relate more to parenting time then physical custody, it is much more common now that the parties agree to share joint physical custody. In addition, the court can grant joint physical custody where the facts justify it even over one party's objection. Because the determination of support issues are now based on parenting time rather than physical custody, the issue of parenting time has become more important and the label of physical custody less important. It is not unusual for the parties to have joint legal and joint physical with one party to have primary residence or for the parties to define their parenting time specifically on an equal or unequal basis. Those decisions will directly effect the issue of support.
If custody is contested, it is the most difficult issue in any divorce. Ideally the parties would be able to set aside their differences in the best interests of the children. However, if the parents disagree, the usual process is for the Court to appoint a custodial evaluator to make a recommendation as to custody and parenting time. The fees of the custodial evaluator will usually be equally shared by the parties and the rates commonly are as high as those of legal counsel. After the evaluator makes their recommendations, the parties can agree with it or disagree and go to trial. Although the custodial evaluator's recommendations are not binding on the Court, the Court typically accepts the recommendations of the evaluator. Each party has the right to have their own custody evaluation completed at their expense. At the trial, the Court is required to apply the statutory factors to its analysis and make a final decision.