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When parents divorce, the divorce decree will specify with whom the divorcing couple's children will live (and circumstances under which the other parent will visit with the children). Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the child's best interests.

In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.

Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

When the child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents.

In any situation where child custody rights are at issue, a number of key questions are raised. If you are going through a divorce, you will want to know whether your child will live primarily with you, and if not, whether will you will be able to make important decisions as to how your child will be raised. If you are a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility.

Answers to these questions are at the root of most custody situations, but for parents and others without significant experience with child custody and the legal system, a fundamental concern is: How are custody decisions made? Following is a brief discussion in response to that question.

If you are a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitation issues are resolved in a divorce. In general, like all aspects of a divorce -- including property division, child support, financial division, and spousal support (alimony) -- child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court. More specifically, custody and visitation decisions are typically resolved in one of two main ways in a divorce:
1- Parents reach an agreement on child custody and visitation, as a result of:
Informal settlement negotiations (usually with the help of attorneys); or
Out-of-court alternative dispute resolution proceedings like mediation or "collaborative law" (usually with the help of attorneys).
2- Court makes a decision on child custody and visitation (usually a family court judge).

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