Divorce, Family, and Matrimonial Lawyers – Darien, CT
Custody And Visitation
The court may assign custody of any minor child to either parent, to the parents jointly, or even to a third party, based upon the best interests of the child. There is a presumption that it is in the best interests of the minor child to be in the custody of a parent over a non-parent; this presumption can be rebutted by a showing that it is detrimental to the child for a parent to have custody. In making custody determinations, consideration will be given to the child's wishes, if the child is of sufficient age and is capable of forming an intelligent preference. There is no automatic age at which the child's wishes will be considered.
In Connecticut, there is a presumption that joint custody is in the best interests of the minor child where both parents agree to an award of joint custody. There is no such presumption where the parents do not agree. Custody has two components: legal custody and physical custody. The person having legal custody is the person having control over decision making. Thus, where the parties have joint legal custody, both parents share in the decision making about major matters, such as education, health, and religion. Day-to-day decisions, however, are normally made by the parent with whom the children reside. If one of the parties has sole legal custody, that parent decides matters of importance concerning the child.
Physical custody refers to the child's residence. Where the parties share joint physical custody, the children actually spend approximately half their time with each parent. This type of arrangement is extremely unusual and requires great cooperation between two mature adults who are willing to live in close proximity to one another and can afford to do so. It requires that the parties’ residences are comparable, that each has extra room for the children, and that each household has extra sets of clothing, toys, books, etc. It requires that each parent trusts the other and that each has respect for the other's parenting.
It is more typical for the parents to agree upon a parental responsibility plan that allows for the children to primarily reside with one parent and have a visitation schedule that allows them time with the other parent. If the parents are unable to agree upon a plan, the court has discretion to set the frequency and duration of the visits. Visitation schedules, as outlined in a parental responsibility plan, can be flexible and worded in such a way that the parents have the ability to set a schedule that works for them and the children. A non-specific visitation schedule typically works best for parents who get along relatively well and who are comfortable with more frequent communication to set up appropriate visitation times. A custodial parent should hesitate to enter into such a flexible schedule if he or she has qualms about the non-custodial parent's ability to respect boundaries and limit his or her visits to agreed-upon times.
Likewise, a non-custodial parent should not enter into such a flexible agreement if he or she believes that the custodial parent will not make it easy for him or her to see the children.
Visitation schedules can be as detailed as the parties wish them to be. If the parties do not want an open, flexible visitation arrangement, they can outline a visitation schedule in a parenting plan. The visitation schedule can cover times and locations for pickup and drop-off, holiday schedules, and school vacation schedules.
Joint legal custody may be awarded without joint physical custody. In other words, although the children may principally reside with one parent, both may be involved in major decisions.
If the parties are unable to agree on custody or a parenting plan, the judge has discretion to make orders on these matters after considering the rights and responsibilities of both parents as well as the best interests of the child. In addition to making orders commensurate with the best interests of the child, the court may consider the following non-exhaustive list of factors:
- The temperament and developmental needs of the child
- The capacity and the disposition of the parents to understand and meet the needs of the child
- Any relevant and material information obtained from the child, including the informed preferences of the child
- The wishes of the child’s parents as to custody
- The past and current interaction and relationship of the child with each parent, the child’s siblings and any other person who may significantly affect the best interests of the child
- The willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate
- Any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents’ dispute
- The ability of each parent to be actively involved in the life of the child
- The child's adjustment to his or her home, school and community environments
- The length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment.
- The stability of the child’s existing or proposed residences, or both
- The mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child
- The child’s cultural background
- The effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child
- Whether the child or a sibling of the child has been abused or neglected, as defined by law
- Whether the party satisfactorily completed participation in a parenting education program
The court has the discretion to give as much, or as little, weight to any of these factors as the court deems appropriate.
If the parents are unable to arrive at an agreement on the custody arrangements or visitation schedule, the case is considered fully contested. In Connecticut, most contested custody cases are referred to the Regional Family Trial Docket in Middletown, which has its own procedures.