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And then there's the issue of custody. In the past, in cases in which the minor child was born out of wedlock, the Father would be required to file a separate legitimation action first, and then only after legitimation was granted, could he bring an action for custody. But that is no longer the case. Legitimation and Custody actions may be filed contemporaneously (together).


"Primary physical custody", addresses which parent the child will actually reside with. Now, there have been a few incidents when the parties are awarded "joint physical custody", but this is not the norm. In one divorce action in which the parties were awarded "joint physical custody", the parents literally lived next door to each other. In that case, the children would reside with the Mother Monday through Thursday morning and would reside with the Father Thursday after school through Sunday. To obtain "joint physical custody", the living arrangements, school, etc, has to make sense. The court does not want the minor child traveling all across the city to attend school with hours on the road going back and forth between parents.

Legal custody addresses which parent may have input and/or make decisions pertaining to the following issues involving the minor child (1) education, (2) religious upbringing, (3) extracurricular activities, and (4) health/medical issues. If the parents are awarded "joint legal custody", then BOTH parents may have input into these issues. Both parents can speak to the child’s doctor, school teacher, decide whether the child will be brought up as Christian or Muslim, etc. Both parents can decide which extracurricular activities the child can participate in (e.g., football, track, basketball, cheerleader, etc.).

Whenever the parties are awarded "joint legal custody", one or more parent must have final decision making authority (i.e., tie-breaking authority) in the event that the parties are unable to agree on the four issues.

The parties may also agree (or the court could order) that the issues could be split between the parties. For example, the parties could agree (or the court could order) that the Father has final decision making authority on the issues of extracurricular activities and education, and the Mother has final decision making authority on the issues of religion and health/medical.

Historically, it was generally viewed that the primary physical custody of the minor child should remain with the Mother. However, more and more, this is not the case. Whether primary physical custody is initially granted to the Mother or Father, a change in circumstances, proof that the custodial parent is unfit, or proof that the best interests of the minor child would be best served with the other parent, primary physical custody can be changed.

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