When parents divorce custody can be complicated as obviously the children cannot reside or be present in two locations at the same time.  Because both parties are parents and will remain parents their parental rights are not altered.  Both parties normally share joint legal custody.

Joint legal custody means the parties equally share in making major decisions for their children in such as decisions regarding religion, education, health.  For example, both parents can approve medical treatment, obtain records, attend parent-teacher conferences, and must agree on such major decisions.  If an agreement on the major decisions cannot be reached the parties may have to go to court to have the court decide.

Physical custody is sometimes also joint, meaning that the children or child spend and equal time with each parent such as one week on and one week off or six months with one parent then six months with the other parent.  Courts are split on whether this is appropriate as the children will be moved between two different locations.  It is particularly difficult when the parents do not live in the same school district.

Physical custody is otherwise awarded to one parent for the majority of time and parenting time awarded to the other parent.  For example one parent has the children during the week and the other parent (the noncustodial parent) has the children every other weekend.  Birthdays and holidays normally alternate.  To determine physical custody the court will look to see if there is an “established custodial environment”.

An established custodial environment, in a nutshell, is the environment where the child calls home with the parent the child most looks to for guidance.  If there is an established custodial environment the party that has it will probably get custody.  Therefore it is very important that when divorcing you speak to an attorney before an established custodial environment is formed but you also cannot deny the other party reasonable parenting time.

In awarding custody the court will also balance the “best interests of the child” found in the Child Custody Act . The factors can be found here.

Child custody can be changed even if there is an established custodial environment.  This is done with a Motion to Change Custody and will be decided based on the best interests of the child by what the law calls “clear and convincing evidence” of a change of circumstances or other proper cause.

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