This article is the fourth in a multi-part series on women’s rights in divorce cases. While divorce laws are supposed to apply equally to both spouses, there are issues unique to women in divorce worth considering. It’s essential to have a competent attorney who represents women in divorces and understands their unique experiences in these situations. If you’re wondering, what are the rights of a wife in a divorce? here are critical factors to weigh.
Custody and Visitation
As a mother, custody and visitation for your child(ren) is your most important concern in your divorce. This is often the most difficult, contentious, and emotional part of any case. It’s important to know how a court will determine custody and visitation so it is important to have an attorney with extensive experience in custody cases from the mother’s perspective.
The most critical factor a court considers in determining custody and visitation is the “best interests” of the children. This legal standard focuses on many different aspects of a child’s life including healthcare, education, general welfare, relationship with his/her parents, and much more.
There are two types of custody, legal custody and physical custody. Legal custody is who makes major decisions for the children. Physical custody is which parent the children will live with most of the time. Visitation is the schedule the non-custodial parent will have with the children.
Legal custody can either be “sole legal custody” or “joint legal custody.” If the court awards you sole legal custody, you get to make all major decisions for the children. You may still be required to keep the other parent informed and even discuss decisions with the other parent, but ultimately the parent with sole legal custody has the final say on all decisions. Major decisions can include where a child goes to school, what medical and dental procedures the child goes through, their doctor or therapist, and what activities they engage in. The parents have equal decision-making power over a child in joint legal custody. It doesn’t mean parents will agree on every decision, just that they have equal rights to make decisions. Legal custody is the most common ruling a court makes even sometimes in very contentious cases. However, in cases involving parental alienation, significant disagreements between the parents on major decisions, or poor communication between them, the court will often grant one parent sole legal custody.
The court will also decide which parent has physical custody of the children and what the other parent’s visitation will be. A parent who is granted sole or primary physical custody means they have the children the majority of the time and their residence is the children’s home address. Some parents will end up with shared physical custody of the children which means they share time equally or both have enough time with the children that neither are considered the primary physical custodian of the children. In cases where there is clearly one primary physical custodian, the court will determine a visitation schedule for the other parent.
Here are some of the factors the court will consider when deciding custody and visitation:
- The parents’ and the child’s age, mental health, and physical health
- The relationship between the parents and each child
- The child’s needs and the ability of each parent to provide for those needs
- The role each parent has played in the child’s life and what role they will play in the future
- Any history of abuse
- If they’re old enough, the preference of the child
While the law presumes that both parents have the same rights with respect to children initially, there’s no question there are differences in approaching custody and visitation cases if you are a mother. Further, there are several other issues that can have a major impact on child custody cases. Examples include mental health issues, special education or disability issues, serious physical health problems, where each parent lives, sibling and extended family relationships, and domestic violence. It’s important your attorney understands more than just the basics of custody and visitation cases and has extensive experience in the nuances that can come up and what it takes to get a mother the best outcome possible.
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We hope this content helps answer the question, what are the rights of a wife in a divorce? If you are facing a divorce and custody and visitation of your children is an issue, contact WhitbeckBennett to see how we can help. Our attorneys have represented countless women in divorce cases, and we are here for you in yours.