How does child custody work?

Child custody is a very delicate issue for many couples. For married couples, the decision is usually taken during the divorce either by an agreement between the spouses or through the state's intervention through a family court judge. In some cases, the court may decide on the child's custody before the couples reach a settlement agreement.

Couples can decide on custody through the following means:

  • Divorce collaboration procedure (for married couples)
  • Mediation
  • Reaching a Settlement Agreement directly or through their attorneys

Types of Child Custody at a Glance

The most important factor the court considers when granting custody is the child's best interests. The judge must also decide which parent has the right to legal and physical custody or if both parents are entitled.

When the parents are divorced, the court carefully considers the ease of parenting and the circumstances under each of the spouses. For instance, a parent whose work demands that he or she always travel out of the country or state may be less likely to have custody. However, orders of the court may be varied if the circumstances change e.g., the spouse with custody dies or becomes incapable of caring for the child.

Sole vs. Joint Custody

A "sole custody" occurs when the court decides the legal and physical custody of the child in favor of only one parent, while the other parent may only be allowed limited visits. A "joint custody" is determined where both parents share the legal custody of the child, even if the child continually lives with one parent.

Legal Custody

Legal custody refers to a court-granted right to make important choices or life decisions on behalf of the child. Legal custody can either be shared ("joint custody") or awarded to one of the parents ("sole custody") in cases where one parent is declared unfit to have or share legal custody of the child.

In most custody cases, the parents have joint legal custody. This implies that they have equal rights to determine the child's life choices such as healthcare, choice of schools, etc.

When joint (legal) custody is granted to both parents, a parent that deliberately excludes the other from participating in making decisions concerning the child may be found guilty of contempt of the court.

Physical Custody

A parent with the physical custody of a child simply means the parent with whom the child (minor) lives.

Can the court award joint physical custody of a child? Yes. However, due to the complicated effects it can have on the child's stability, a judge may not be disposed to granting joint physical custody. What is usually obtainable is that one parent is granted sole physical custody while the parent without physical custody has visitation rights e.g., weekend visits, holidays, summer vacations, etc.

How to Get Custody

Again, the most important factor in deciding custody is the child's best interests. But in some cases, this may not align with the wishes of one of the parents since it is most likely that only one of the parents will have sole physical custody. Therefore, how can you make sure you are the one to get custody.

Custody can be agreed on by the spouses going through a divorce before the process is finalized. However, you will still require the sanction of the court to get approval on child custody. Often, the stakes and emotions are high during this period. You should speak with a family law attorney to understand how best you can work the process.

Negotiating Child Custody Arrangements Informally

Parents can reach custody arrangements by themselves or through the help of their attorneys. If an informal agreement is reached, the terms are written as a "settlement agreement" or "custody agreement".

This agreement is then presented to the court for approval. Once the judge agrees to the proposal, the agreement becomes binding, and the issue will remain resolved without the need for a trial.

Using Alternative Dispute Resolution for Child Custody Decisions

Alternative Dispute Resolution (ADR) methods offer a variety of options to resolve custody disputes outside of the courtroom. These methods include mediation, collaborative family law, and arbitration.

The difference between ADR and a court trial is that ADR is more collaborative and reduces the parents' "fight for stakes". Also, ADR methods are often faster and more private. This protects the sensitive nature and interests of the child.

  • Mediation: In this process, a professional mediator helps the parents to reach a compromise by creating an enabling environment for them to discuss the dispute and come up with solutions. They may do this with or without the assistance of their attorneys.
  • Collaborative Family Law: This model is similar to mediation, but it requires the involvement of specially trained lawyers. Also, the parties and their attorneys are required to achieve the goal of reaching an agreement, else, the attorneys will be disqualified from further representing the parties either in a fresh settlement process or in court.
  • Arbitration: The parents mutually appoint an arbitrator to investigate the issues legally and reach a binding decision on both parties. The process is very similar to the courtroom but with more flexibility to the application of legal principles.

Mediation and collaborative family law are often the most likely choices when parties opt for ADR when deciding on child custody disputes.

What is a Parenting Agreement?

A parenting agreement is a set of custody and visitation rules agreed to by parents on their child's custody. A parenting agreement is usually drafted with the parents' attorneys' help and then reviewed and signed by the parties.

Some of the terms included in a parenting agreement are:

  1. Whether either of the parents will have sole legal custody or both parents will have joint legal custody
  2. The parent or third party (guardian) with the physical custody
  3. Visitation rights and schedules
  4. Modalities for future amendments to the custody agreement

The Child Custody Hearing

A child custody hearing is held by the court to finalize the custody of the child. During the hearing, all parties are heard before a decision is made.

Where the parents have reached a custody agreement, the same may be approved by the court if satisfied that it is in the child's best interests. The judge also finds out if there are no other disputes regarding custody. However, if the parents are unable to reach a compromise, the court will have to make a binding order on custody to resolve the dispute.

Child Custody Forms by State

Custody forms vary in each state. To ensure that you are well-informed and encounter fewer challenges in the decision-making process, it is advisable to review the forms ahead. This will help you in your responses to the judge's questions during your child's custody hearing.

Alabama

Alaska

Arizona

Arkansas

California

Colorado

Connecticut

Delaware

District of Columbia

Florida

Georgia

Hawaii

Idaho

Illinois

Indiana

Iowa

Child Custody

Kansas

Kentucky

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

  • Family Law Legal Self-Help (North Dakota Supreme Court)

Ohio

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

Child Custody Laws

Federal Material

U.S. Constitution and Federal Statutes

Federal Regulations

Federal Judicial Decisions

State Material

State Statutes

State Judicial Decisions

International Material

Conventions and Treaties

Visitation Rights

After the court decides on child custody or approves the custody agreement, one of the parents often gets sole physical custody. Whether the court expressly grants the noncustodial parent visitation rights in its order or not, the law already implies visitation right in favor of the noncustodial parent.

The exception to visitation rights is when the court, in very limited circumstances, expressly excludes the noncustodial parent from the right of visitation in its decree.

The limited circumstances may exist where a parent proves that the continued visitation of a noncustodial parent will harm the child's interests – whether short or long term. For example, if there is a history of child abuse from the noncustodial parent. In this instance, the court may prohibit a parent from visiting. Parents who have a prison record are not denied visitation rights outrightly.

It should be noted that child custody rules often vary by state. Where a parent disobeys or disregards the court's order not to visit the child, he or she may be held in indirect contempt of court.

Custody Evaluation

When parents are unable to come up with a custody arrangement, the court may refer both parents for a custody evaluation.

During custody evaluation, a mental health professional – usually a psychologist – asks questions about your family to find out the key issues. Based on findings, the professional makes an expert recommendation to the court for consideration. The recommendation is a custody or visitation plan that reflects the child's best interests in the expert's opinion.

This article explains the instances you may be referred for custody evaluation and how you can prepare for such evaluation.

Parental Rights and Responsibilities

Ordinarily, parents possess equal rights and responsibilities in raising their child. These rights and responsibilities include making key decisions like where the child resides, choice of school, holidays, etc. However, a separation or divorce will significantly affect the uniformity of minds or the potential for parents to reach a compromise.

Where there is a separation or divorce, the court encourages both parties to reach an agreement to reinforce the need for both parents' involvement in their child's happiness and growth. Sometimes, parents are unable to reach a compromise and the court will have to resolve this dispute by determining the parental rights and responsibilities in the new atmosphere.

How To Get Full Custody Of My Child

Full custody means having both legal and physical custody of your child. In most cases, the judge awards joint legal custody to both parents and grants physical custody to one parent, while the noncustodial parent has visitation rights. In some instances, the court may give joint physical custody, which implies that the child will spend time in each parent's home. The court may in rare instances, prohibit one parent from visiting due to proven circumstances like a history of substance or child abuse.

You may get full custody of your child if the court or your Ex agrees but be prepared to allow your Ex to enjoy visitation rights.

Factors Considered for Granting Full Custody

The court will consider the following factors to grant full custody:

  • The child's best interests: Full custody implies that one parent "wins all". To ensure this, a parent must prove that joint custody will not be in the child's best interests and may even be injurious.
  • History of abuse: The court will consider if there has been any record of abuse from either parent as a ground for granting full custody.
  • Courtroom attitude and appearance: The judge will also observe the parent's attitude in court, the dressing, approach, demeanor to assess the parent's fitness to have full custody.
  • Level of preparation: The court will also consider what the parent requesting full custody has put in place to ensure the child's best interests are served.

Child Custody for Mothers

It is common to find that courts are usually more disposed to favor the mother when deciding custody.

Often, the mother is granted physical custody due to the presumption that she is likely to give more attention and care to the child. While this belief may be proved otherwise, the court will be greatly reluctant in denying the mother either legal or physical custody.

Can a Mother Lose Custody of Her Child?

Yes, a mother may lose custody of her child. For instance, if she repeatedly violates the court's order concerning physical custody or there is a record of abuse. To understand how custody may be taken away from a mother, it is crucial to review the specific state child support laws before reaching a custody agreement during a divorce.

The following are instances where a mother (a parent) may lose custody of her child:

  • History of child neglect or abuse
  • Domestic Violence
  • Violation of custody agreement or court order
  • Substance Abuse or Addiction
  • Child abduction

Custody may be lost if a party proves that the current physical environment of the child is harmful or potentially harmful. This can even be proven with evidence of bad blogging by a "psycho ex-wife" or husband and other corroborative evidence.

How Can a Father Get Full Custody of His Child

While dads can have full custody, the statistics show that very few fathers have full custody of their children. Census records show that about 17.5% of fathers have full custody. The process can be difficult for fathers to gain full custody, because of the technicalities involved and the difficult task of convincing the court to decide in their favor.

Except in cases of abuse or substance use issues from the mother, the court is unlikely to award full custody. This implies that custody will likely be shared in a regular custody case.

It is important you review your state's child custody laws if you are a father going for full custody or joint custody. A child custody attorney will also help you prepare for the child custody battle ahead of you. If the boxes are ticked, you may have a better chance of securing full custody.

How To Win Child Custody Disputes

Parents bracing for child custody disputes need to understand the factors the court will consider when deciding their child's custody. Since the judge is an "uninterested umpire" seeking to decide in the child's best interests, the decision could swing either way. But having insights into the judge's thinking process will help you in your preparations to convince the judge that you are the best option for custody or, at least, that you deserve joint legal custody and favorable visitation schedules.

Here are some of the factors the court will consider:

  • The child's age and gender
  • The history between the parent and child, including cases of abuse
  • The physical, financial, and mental state of the parents
  • The type of home and atmosphere each parent is proposing
  • The current school and friends of the child and whether moving will hamper the child's social development
  • If the child has special needs
  • Parenting abilities (i.e., ability to discipline the child)
  • The wishes of the child – if they are older

The rationale for deciding custody is mainly based on who can best raise the child – not the parent with the bigger assets or financial base.

Signs You Need to Hire a Child Custody Lawyer

Parents in a child custody dispute may not readily decide whether to hire a child custody lawyer or not, due to several factors ranging from financial capabilities, presumptions about lawyers, and even previous experiences. In some cases, some parents decide to file pro se i.e., to represent themselves without the assistance of a lawyer.

To save costs, some parents file pro se. However, this may be a risky choice if the case is complicated. The decision should be based on the results you want and if you really can manage to get that result without the help of a lawyer, considering the paperwork involved, the emotional investment and stakes, the deadlines, the trial or negotiation tactics employed by the other party, etc.

The following signs will indicate if you should strongly consider hiring a child custody lawyer in your state:

  • You believe that your child is not safe with your Ex
  • A history of being prevented from seeing your child
  • Your Ex has an attorney
  • New facts have emerged in the case
  • You have a history of substance or alcohol use
  • Your Ex changed his or her mind about an informal agreement
  • You don't know or understand your state's family law
  • The court orders you to take a treatment or class

Will Police Enforce a Child Custody Order?

Whether the police will enforce a child custody order is at the discretion of the police. Often, the police try as much as possible to avoid family disputes and may refer you to the court for a restraining order or contempt proceedings against the violating parent. However, if the violation of the order threatens or is likely to threaten the safety of the child, the police will more likely get involved to rescue the situation.