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© 2016 - U.S. Legal Forms, Inc USLegal Pamphlet on Primary Custody INTRODUCTION Primary custody refers to the parent with whom a child lives after both parents separate or divorce. It is also referred to as physical custody. Physical custody is the right of a parent to have his/her child live with him/her. If a child lives primarily with one parent, that parent is said to be the custodial parent with primary physical custody or sole physical custody. The other parent would be considered the non- custodial parent and would typically have visitation rights to his/her child. If a child lives equally or close to half the time with each of his/her parents as part of a child custody and visitation/parenting schedule or court order, the parents are typically said to have joint physical custody. The person with physical custody has the responsibility to provide a primary home for the child, including basic necessities like shelter, food, clothing, and proper care and supervision. Some states recognize the concept of joint physical custody where the child spends approximately half the time in each parent's home. Physical custody is also called residential custody. Primary custody is awarded based upon a number of factors and doesn't necessarily denote the fitness of the parent. The primary residential parent generally has final decision-making authority in day-to-day care and control of each child. Primary custody is governed by state statutes, which vary by state. The following is an example of one state's definition of primary custody: "A parent has primary physical custody (or primary custody) of children for purposes of this rule if the children reside with the other parent for a period specified in the custody order of less than 30 percent of the year." If parties to a divorce who have children of the marriage cannot agree on custody and visitation rights, the court will decide these issues based on the best interests of the children. Typically, one parent will receive physical custody of the children, allowing them to reside with that parent most of the time, and both parents will share legal custody of the children. Parents with legal custody can make important decisions, such as those relating to the children’s education, religion and medical care. Joint custody results in the children spending an equal amount of time with each parent, while split custody allows one parent to receive custody of one or more children and the other parent custody of the remaining children. In determining the best interests of the children in an award of custody, the court will consider several factors, including the children’s preference (if the children are of a certain age), age and sex of the child, children’s development and progress in school and other activities, which parent serves as the children’s primary caretaker, the parents’ mental and physical health, religious beliefs, stability of home environment, relationship with other members in parents’ home, support the parent will provide the child in interacting with the other parent or the children’s family, abuse by a parent and the lifestyle of a parent, including drug or alcohol use. In certain situations, persons other than parents may obtain custody of children, such as grandparents or other close family members. Some states consider such persons guardians of the child. The court will also award a non-custodial parent visitation rights, either through a reasonable visitation schedule left to the parties to establish or a fixed visitation schedule. Parents who have a history of physical abuse or violence may only receive rights to supervised visitation, requiring another adult to be present during the visits with the children. Grandparents of children of divorced parents may also seek visitation rights when the parents of the children divorce or when one or both parents die. Some states have enacted restrictive visitation statutes for grandparents only, while others allow visitation by persons other than grandparents, including foster parents or stepparents, even when the parents have not divorced or died. C USTODY EVALUATIONS The rules of civil procedure authorize courts to order studies either by agreement or the request of one party. Because these studies involve expert opinions, each party is entitled to his or her own expert. However, these private evaluations are expensive (typically $5000-7500) and experts separately hired by each parent tend to be viewed as “hired guns” for their parent employers. Most studies are jointly undertaken by neutral evaluators who is assigned by the court to identify what custody arrangement would be in the best interests of the child involved. C HOOSING A PRIMARY C USTODIAN A court will examine all the factors involved in each case. The overall consideration for the court is the child’s best interest. Some of the factors that may be considered by the court, among others, include the following: