What are the legal implications of separation on child custody?

When a married couple chooses not to live together and makes alternative living arrangements, it is often a precursor to divorce. If there are any children involved, the estranged couple can choose to share custody.

During separation, the couple is still married. Simply living apart does not establish a legal separation or end the marriage. Living apart sometimes allows the parties to try out possible arrangements to terminate their marriage. If the couple has children, one key element might be arrangements relating to child custody.

Living apart and custodial rights

From a legal standpoint, parents who choose to live apart do not have any greater, lesser or different rights to care for or spend time with their child than parents who live together.  Sometimes the parents, by agreement, may arrive at a plan for how decisions in their child’s life will be handled, and how much time the child spends with each parent. However, neither parent has the power to impose his or her preferred arrangement on the other if the parents are not in agreement.

Determination of custody by the parents

In some instances, parents can successfully negotiate a parenting schedule with their spouses. Such agreements must be put in writing, signed by both parents, and filed with the court to become legally enforceable. The court has the final say over whether such agreement will be approved and become  court orders.  However, if the plan seems reasonable and child appropriate, the court will likely approve it.

Determination of custody by the court

If parents who live apart cannot agree as to the custodial arrangements for their child, the court has discretion in determining what the custodial orders should be. A judge will base their decision on what is in the best interests of your child. A judge will look at many factors to make this decision, including:

• Which parent has been the primary caregiver for your child?
•  How old are the children in question?
• Whether either parent is able to promote a good relationship between the child and the other parent.
• What arrangements would give the child regular contact with each parent.
• Whether there is a history of substance abuse, child abuse or domestic violence by either parent.
• How close together or far apart the parents live from each other.
• The work and/or school schedule for each parent and the school and activity schedule for the child.