Custody v. Visitation

What exactly is the difference?

By Bill Noelker

Practice Manager Self Legal Group

Lawyers sometimes fail at explaining complicated legal concepts to their clients. Examples of this issue are the legal concepts of custody and visitation. Because family law attorneys deal with these terms every day, they often forget that the client is hearing these terms for the first time either in their own divorce or custody case and therefore neglect to explain them in a way that is understandable for the client. In this article I will attempt to demystify these two terms and hopefully eliminate some confusion regarding these two very important legal concepts.

When a typical client thinks of custody in the context of a divorce or custody case, she understandably thinks that it means physical possession of a child. This is a logical assumption that many clients make but unfortunately is just wrong. What custody in this context means is the authority of a parent or custodian to make decisions for the minor either alone or in consultation with the other custodian. For example, in a situation where both parents have joint custody, each has the right to have a say in the bigger life decisions that parents typically make for their children. It is called joint because each parent has an equal right. Notice that this has nothing to do with whose care the child is currently in. That is because physical custody has nothing to do with joint custody in the context of a divorce or custody action.

Notice I wrote “bigger life decisions”. Why did I qualify it? Because it would be unreasonable for two parents who are no longer together to each have a say on small everyday decisions regarding the child when the child is only present with one or the other. As an example, what shoes the child will wear to school on a particular day is a decision that for practical purposes needs to be made by the parent that will be taking the child to school. One could see how having two custodians who may not like each other could quickly turn a mundane inconsequential decision into a major court battle costing each side a lot of money and forcing the judge to decide the type of shoes the child will wear. We have enough to fight about in divorce and custody cases without having to complicate things by making the custodians agree on every little detail of the child’s life. Plus, judges don’t like to make fashion decisions.

So, each custodian gets a say in big things. What are some of examples of big things, you may ask? Religion, non-emergency medical procedures, dental procedures, counseling and education are all big decisions that require the discussion and consent of both parties. These are by no means the only ones. In a case where a disagreement arises regarding a big thing the only way to resolve it is to bring it to the attention of a judge who will ultimately decide the issue. Mediation is also an option, but mediation requires compromise and often when a disagreement occurs about big things compromise is usually not possible.

So, what does visitation mean in this context? Visitation means the right to visit with the child. In other words, a joint custodian exercising visitation with a child means that the child is staying with that custodian either on a long- or short-term basis. For example, a divorced couple each has been awarded joint custody by the judge. Each party is also awarded equal visitation with the child. That means that each party gets to have input into big decisions and each party gets to visit with the child an equal amount during the year.

Now let’s complicate things a little. There are only two types of custody, joint and sole. We discussed joint but what is sole custody? Sole custody means one parent is awarded sole decision-making authority for the children. Big decisions no longer must be agreed upon and the parent with sole custody gets to make all the big decisions regarding the child. Visitation could still be split equally between the two parents. So, in a case like that one parent makes the big decisions but both get to visit equally with the child.

Why is sole custody an option? Sole custody is used in those case where one parent just cannot cooperate in good faith with the other parent or is somehow a danger to the child. Instead of allowing the bad parent to obstruct the other parent for spite, the judge orders sole custody eliminating the problem altogether. It is worth noting that joint custody is the preferred arrangement, but it only works if both custodians set aside their hurt feelings for the benefit of the child.

One other possibility exists and is sometimes used to control a custodian who is being uncooperative. A final decision maker is sometimes awarded in a custody case. What this means is the joint custody is awarded but in the event of a disagreement the judge already assigns one custodian to have the final say. The person with final decision-making authority in essence has a veto over the other custodian preventing the parties from having to come back to court time and time again if they cannot agree.

As you can see custody and visitation are very complicated issues and this is by no means an exhaustive treatment on the subject. Hopefully, I have managed to explain this in a way that is clearer to you. As always if you find yourself needing a good custody attorney, we are here for you.