Child custody refers to the
housing and care that a child receives from their parent or guardian.
Caring for a child is an inexpressibly important task; therefore the
list of responsibilities pertaining to custody is long and complex. In
the event of a divorce between two parents child custody can become a
perplexing and often distressful issue. The following information is
meant to help guide you through the legal web of child custody and child
Types of Custody
There are several
different types of custody awarded in the United States. Since no
family is the same, these different types of custody were created to
best accommodate each family’s unique situation.
Legal custody is when the parent or guardian has a legal right to major
decisions regarding their child. Such decisions pertain to education,
health, and welfare.
Physical custody is when the parent or guardian has the legal right to
live with their child. A parent can have both legal and physical
custody, while some parents may have legal custody but not physical
Sole custody is when all parenting responsibilities and decisions are
given to one parent. This does not include child support; the parent
without custody may still be required to contribute financial support
for the child.
Split custody is when there are two or more children in question. Each
parent is responsible for one or more children to care for on their own.
This is rare, since courts often find it disadvantageous to separate
Joint custody is when both parents have a say in who has a right to live
with the child and decisions regarding the child’s welfare. There are
both physical and legal joint custody, which can be awarded separately
Shared custody is when both parents have an equal say in who has a right to live with the child and decisions regarding the child’s welfare.
How Custody is Decided
decided either through mutual agreement or through a court ruling. A
mutual custody decision can be made through an out of court settlement
or through mediation. The parties can be represented by their attorneys
at the settlement to make sure their needs are being heard and met. The
parents decide through cooperation who has custody over the child or
children, and what kind of custody will be enacted (joint, sole, etc.)
The agreement reached must be recorded in a written document and signed
by both parents.
If mediation is needed the parties may hire a professional attorney or
mediator to assist with the decision making process. Another name for
this is alternative dispute resolution. It may be used when the parents
are willing to cooperate, but can’t come to an agreement on their own.
If mediation fails, or parents are unwilling to cooperate in making
custody decisions, then the issue must be taken to court. This should be
treated as a last resort, since most parents would rather have the
final word in their children’s future, rather than a judge. In court the
parents present their case supporting their desired custody situation.
The judge examines their history as parents, their current financial,
medical, emotional, and mental situations, and expert impartial
witnesses such as social workers and psychologists may be called. These
experts will have spent a number of hours with the parents and children,
and will offer up their professional opinion on custody rulings.
Other Factors in Deciding Custody
Mother vs. Father
Generally, the mother is usually awarded custody of the children due to
their natural historical role as a caretaker. However, now that a
greater number of husbands are stay-at-home dads and more mothers are
the primary providers, these rulings are becoming less frequent.
The judge will also consider who has the most
hands-on experience with the child. Whoever bathed, fed, clothed,
administered medical care, and took the most interest in the child’s
education and activities is more likely to be awarded custody.
If a parent has a history of abuse with the child this will
certainly be counted as a negative factor. This includes both physical
and psychological abuse. If a parent hit, neglected, or continually put
down a child, the judge will take this into serious consideration.
Drug and Alcohol Use
If a parent has a history of abuse with
drugs and alcohol this will also be counted as negative points against
them, depending on how long ago the addiction occurred and if the parent
had been successfully rehabilitated. A household maintained by an
alcoholic or drug-addicted parent will be deemed unsafe for a child and
the parent will most likely not gain custody.
To be awarded custody a parent must display a
responsible lifestyle in order to function as a proper role model to
their children. While many states do not take religion or sexual
orientation into consideration when deciding who will be the best
parent, some states do. Oftentimes, if the parent in question has been
involved in a cult or any unhealthy form of religion, this may count
against them with the judge. Also, in states that outlaw same-sex
marriages, a homosexual parent may be deemed an unfit parent as well.
This may also depend on possible prejudices the presiding judge may
Infringement on Other Parent’s Rights
If a parent displays a desire to limit the visitation of the child and
the other parent, this may be viewed negatively by the judge. As
mentioned before, the judge will want to promote healthy relationships
between the child and both parents, and any attempt or desire on the
part of parent to limit that relationship with the other may result in
the loss of custody.
Preference of the Child
If the child is
reasonably mature, the court may ask the child their opinion. This may
not necessarily result in the child living with their desired parent,
but the judge will take it into consideration.
Best Interest of the Child
is the most heavily weighed factor in deciding custody. In fact,
disagreements on what is best for the child is a primary reason why
custody disputes occur, and it is the judge’s job to decide exactly what
“the best” entails. While having a stranger decide the best situation
for your own child may be a hard pill for most parents to swallow, this
is the only outcome when the parents cannot make the decision
Visitation is the time a non-custodial parent spends with their child or children.
How Visitation is Decided
are two means of deciding visitation. The parents can either cooperate
outside the court, sometimes with the assistance of an attorney, or if
they cannot reach an agreement they can settle the matter in court with a
judge making the final decision.
Factors Determining Visitation Rights
visitation rights must be decided by a judge their primary
consideration is what is best for the child. Naturally, a judge will
want the child to have access to both parents, and to be able to foster a
healthy relationship with each. However, the judge must also deliberate
over possible negative influences that the non-custodial parent may
have over the child, which will greatly influence the ruling.
How Visitation Works
are two kinds of visitation for non-custodial parents: reasonable and
fixed. Reasonable, as the name denotes, is the more sensible situation
for all parties considered. In this case both parents come to a mutual
agreement with a flexible schedule about visitation dates, which is
usually decided from week to week. For this situation to work the
parents have to have a reasonably understanding and cooperative
relationship, and be open to compromise. If parents have a hard time
cooperating with visitation dates, or if one parent is consistently late
or absent, then a fixed schedule may not be the right solution. With a
fixed schedule the non-custodial parent meets with the child or children
on the same day or days every week or month, depending on the sentence.
If relations between the parents are particularly volatile or a
restraining order is in effect a third party agent may be arranged to
either convey the child from one parent to another, or to guard the
child at a pre-arranged meeting place. One parent may drop the child off
with the agent at the meeting place and leave, and the child and agent
will wait for the other parent to arrive a bit later. The agent may be
decided upon by the court or through the mutual agreement of the
Changing Visitation and Custody
a judge’s decision regarding visitation and custody is final under the
current situation of the family, it is possible to amend these rights. A
judge may mete out a trial period of several months or years for the
current custody sentence and then will re-evaluate the situation and
decide on a new ruling. Also, if you or the other parent’s situations
change, and the child’s best interest is in jeopardy, you can return to
court for a new hearing. There are several situations in which a new
hearing would be appropriate.
What to do if the Custodial Parent Moves
the custodial parent only decides to move a short distance away, in
which it may be inconvenient, but still feasible for visitation rights
to be met, then the court will most likely not be inclined to change the
current ruling. If the move is far enough to severely hinder visitation
rights the current ruling may be amended. In most states if a custodial
parent wishes to move with the best interest of the child at heart they
are within their rights to do so. If this is the case visitation rights
may be changed to require longer, but less frequent visitations with
the non-custodial parent. In a few states a written consent by the
non-custodial parent is needed for the move to be permitted.
What to do if a Parent Takes a Child
mentioned earlier, if a custodial parent wishes to move they have every
right to do so, but they must notify the non-custodial parent first.
Otherwise, moving away without notice could be construed as kidnapping
and could result in loss of custody and criminal charges. If a parent,
custodial or non-custodial, takes a child without notice you can take
the matter to court immediately and a judge may revise the custody
Hiring a Child Custody and Visitation Lawyer
If you are involved in a legal custody battle, hiring a family or child
custody lawyer is strongly recommended. The best interests of yourself,
and more importantly, your child, are at stake. A child custody lawyer
can make sure that both of your interests are represented.
Child custody lawyers generally charge on an hourly basis and charge a
retainer. The more complicated and contentious a custody battle is, the
more it will likely cost you.