Stillings & Buchinger, LLC

child custody - physical placement

Where a child lives

Physical placement is a legal term that means "primary residence" of a child. In a court order regarding the custody and care of a minor child (or children), the court will specify how legal custody and physical placement are awarded. In cases involving divorce, custody orders are usually part of the final judgment of divorce. In post judgment actions (legal actions taken after the final judgment of divorce or a custody hearing) and other actions such as custody law suits, a court will enter a separate order addressing the legal custody and physical placement of a child or children.

There are a variety of manners in which a court can order the legal custody and physical placement of a child. As well, a court's order regarding legal custody may differ substantially than the order regarding physical placement and in most instances that is precisely how it works. A court will often order legal custody to be shared unless there is a reason not to share legal custody, and order physical placement primary with one parent. However, a court can order custody in any manner that the court determines is in the best interest of the child (or children) and it need not be the same for all children of the same parents.

In most instances, a child has a "primary residence", even if she or he visits the other parent for an extended period of time, such as for the entire summer. Usually, primary placement is made to the parent who performed the majority of the parenting duties during the marriage or relationship, but that is not always the case.

when parents agree on child custody

Parents who agree on the custody of their children can create a parenting plan. The plan will need to include information about the legal custody and physical placement of each child, as well as support. The plan is then submitted to the court for approval. In most instances, unless there is some other reason, a court will grant a joint parenting agreement. Custody will then be awarded based on the agreement. A child support order will also be made and the child support agency will be directed to collect support in the manner provided in the agreement provided support is sufficient or the court agrees with the support provisions.

When Child Placement is disputed

If the parents cannot agree upon a parenting plan, then the Court will intercede. The Court may order the parents into mediation. Court ordered mediation differs from voluntary mediation in many ways. When people opt to go through divorce mediation as a means to resolve any issues that may exist between them relative to marital property, child custody or support, they elect the attorney to handle the mediation, go through the mediation (meeting) process and the mediator forms an agreement that binds the parties to what they agreed to during the mediation process.

However, court ordered mediation related to disputed child custody orders differs in many respects. Court ordered mediation begins with a court order - the court is ordering the parties into mediation to resolve their indifferences. Court ordered mediation often involves a trained social worker or psychologist to work out an agreement. If one or both of the parties contend that the other party is an unfit parent, abusive, or some other accusation, the court may appoint a Guardian Ad Litem to investigate the living arrangements, parents or any other factor that the court or the Guardian Ad Litem determines may affect the children. The Guardian Ad Litem is an attorney appointed to the case by the court and reports only to the court regarding the best interests of the child or children. Separately, the court can also appoint an attorney to represent the child or children.

Whether the court appoints a Guardian Ad Litem or orders the parties into mediation, rest assured that the court will also order the parties to pay for the costs involved in the mediation or the Guardian Ad Litem's fees.

Free initial consultation

Whether you are just beginning your divorce, are prepared to file for divorce, or have already been divorced and have issues with the child custody order of the court, the attorneys at Stillings & Buchinger can help you understand the law and how that law can affect your situation. For a free initial consultation to discuss the attorneys experience in child custody matters and explain your situation, please contact the law offices of Attorney Stillings and Attorney Burchinger.

[more at Mediation]