Custody disputes arise between both non-married and married parents. There are two types of custody: legal and physical. Legal custody involves making major decisions regarding the child’s welfare, including matters of education, medical care (physical and emotional),and moral and religious development. Physical custody involves where the child resides. Parents can share legal custody and/or physical custody.
In custody cases, the Court will often appoint a professional to investigate the facts, known as a Guardian Ad Litem or GAL. A GAL may be a psychologist, psychiatrist, social worker, or a lawyer. When the judge appoints a GAL, they may ask for a recommendation from the GAL. The appointment of and cooperation with the GAL can be very important to the determination of the outcome.
Where parents cannot agree on custody, a trial must take place. Evidence at trial will include testimony from both parents and other witnesses, such as a GAL, and will propose a custody arrangement that is in the child’s best interest. Many custody cases, though at first they seem insurmountable, can be settled with careful drafting of language and parenting plans that work for both parents and the child. Treating professionals like therapists may testify. A treating mental health professional for a child cannot testify unless the child’s privilege is waived. There is a procedure by which the court makes a determination whether to waive the child’s privilege.
Where there is abuse in a family, there is a presumption that the victim or survivor will have sole physical and sole legal custody of the children, as continued abuse is not in the best interest of the child. See also Restraining Orders.