Custody and Divorce

What's the Difference?

Sometimes legal terms get confused when they are used interchangeably.  Divorce and Custody are good examples of that.  If you are getting a divorce and you have children, you will also be working on custody issues.  You could also seek custody of your child even if you were never married and are not in need of a divorce.

Custody as Part of a Divorce Action

When you have kids and you decide to get divorced, the Court has jurisdiction over those kids.  This means that as part of your divorce action, either you and your spouse, your attorneys through negotiation or the judge will decide who has the kids, when and under what terms.  This includes visitation, child support, custody, vacations, health care and everything else that goes along with having a child.  The court will also divide your property either on its own findings or based upon the agreement of the parties or mediation.  Ultimately, the court will also grant your divorce.

Custody as an Independent Action

If you were never married and have a child together, you can ask the court to determine paternity, custody, child support and all the other odds and ends of things that go along with having a child.  This action is essentially the same as the custody portion of a divorce.  The court has jurisdiction over children who have lived in the state for a period of greater than 6 months and therefore can decide who will have custody and what the visitation will look like.

Trends in Custody

It used to be that the mother was almost always given primary physical custody of a child pursuant to divorce or to a custody action.  Over the years the court has moved away from that presumption.  The court looks at the best interest of the child in determining what custody arrangement will be ordered.  The court looks at several factors in making that decision.  While I will discuss those factors in my next post, the important thing here is that custody arrangements these days vary greatly.  Many times the court will order a 50/50 schedule where the child changes households every seven or so days.  If the parties agree on what the custody will look like you can get all sorts of arrangements; basically whatever fits your schedules as well as the kids' schedule.

If you need to talk with a Boise Divorce Attorney give us a call and see what we can do for you. (208) 472-2383.