A minor child is the most affected during a divorce or separation by parents. When parents decide to part ways, the emotional stability of the children should be of utmost concern to each of you. Worldwide, the United States has the highest percentage of children not living with both their mother and father.
Federal law allows the state governments to determine child custody cases according to the best interests of the child. Although each of the states has different processes, the child custody laws are similar in all the states.
Before deciding on child custody, the courts have to determine the best interests of the children involved. Notably, both parents have equal rights to their children, unlike yesteryears when mothers had higher chances of winning cases of sole custody.
Times have changed, and currently, both fathers and mothers are active parties involved in the care of their children. In the past, the family court system used the “tender year’s doctrine” to rule in favor of the mothers. Currently, it would be unfair to deny one parent sole physical custody based on gender alone.
A parenting plan explains how the parents will care and provide for their children after divorce. In the majority of cases, the court will require you and your ex-partner to make an arrangement about child custody before moving on with the process. In case you cannot agree on anything, the judge will impose the conditions.
Keep in mind that judges won’t always know your children’s needs and the details about the relationship with your ex-partner. Therefore, it’s always advisable to work out this crucial aspect instead of relying on a judge to order the conditions.
Where your kids will live when you’re getting divorced, and who will make decisions for them, is agreed upon prior to the final divorce agreement. The arrangement ensures children have their best interests taken care of even before the final marital settlement agreement is issued.
In most cases, the parent who lives with the children during a temporary custody order is most likely to win any child custody dispute which may arise later.
In a scenario where parents cannot agree on temporary placement or visitation of the kids, the courts will create an order deciding the kid’s physical and legal custody. In this case, the court will determine the child’s best interests before granting any temporary order to one parent.
There are also some circumstances where the parent with sole custody rights can voluntarily draft a temporary custody agreement. This is common in situations where the custodial parent is terminally ill or in the military and gets deployed far from home. However, consider if the judge would expect you to ask your co-parent to be responsible in these cases.
Another common reason for temporary custody orders is when work obligations force the custodial parent to be away from both the home and kids for most of the week.
Financial obligations like child support are also stipulated in these child custody papers.
Developed in the 1970s, joint custody was put in place after the law to award custody to both parents came into place. Under joint custody, there’s joint legal custody and joint physical custody.
Joint legal custody allows both parents to make major decisions regarding education, health care, extra-curricular activities, age to take a driving class, and so much more.
Another contentious issue is religion. When parents decide to separate and have split custody, each parent has a right to expose their kids to their religion of choice. If the parents belong to different religions, the children will have exposure to both.
However, no parent should coerce the children to join a specific religion. Instead, the children are allowed to make their decision when they attain legal age to do so.
If the parents cannot agree on some of these major decisions, the courts appoint one parent to make these decisions on behalf of the children. When courts become involved in making decisions you cannot agree upon, it becomes costly for both parents.
The other aspect of shared custody is joint physical custody. This is where the child lives physically, so in a joint relationship, it would be two households.
For instance, the children can spend three days a week with one parent and four days with the other. For the child’s placement to work comfortably, the parents must cooperate and live near each other. There are arrangements of visitation where parents live hours from one another and must create a reasonable schedule and a meeting place for child exchanges.
In most states, the judges assume a joint custody arrangement is the best for both the children and the parents. This is unless the parents decide otherwise or if the arrangement isn’t in the children’s best interests, such as in cases of alcoholism, violence, or worse. The latter concerns are almost always grounds for full custody of the child, and definitely reasons a judge will change custody!
Full custody, or primary custody, refers to an arrangement where the kids primarily live with one parent. This parent also (normally) has the right to make major decisions regarding the welfare of the child. In this case, the other parent may be entitled to visitation rights. The parent who has this primary care responsibility is considered the custodial parent.
Usually, the ex-spouse with visitation rights is allowed some parenting time with the children at certain times. These include alternate weekends, summer vacations, or half of the major holidays.
It’s expected that parents create a detailed parenting plan that includes a visitation schedule. A visitation schedule prevents the emergence of problems such as missed visits or denial of visits by the custodial parent.
It’s also possible that the parents cannot determine how much time the non-custodial parent spends with the child. If parents cannot agree and create their visitation schedule, the child custody court does it for them.
The noncustodial parent should only be denied visitation rights if they have an extreme case of child abuse, drug use, domestic violence, or mental illness. In certain situations, the courts will rule that the noncustodial parent enjoys parental time but under supervised visitation.
The courts will, in most cases, grant visitation rights to the other parent because it’s in the best interests of the children to grow up knowing both parents.
If the children, for some reason, have a preference as to which parent they want to live with, the judge will interview them separately. Of course, if the children’s preference is to have any impact on the judge’s opinion, the age and the surrounding circumstances are keenly analyzed.
Even if a child feels a special bond with a certain parent, the courts have to determine which of the parents can better take care of the child. But, you’ll discover there are many reasons a judge will change custody of a child.
The presumption that mothers are better caregivers has always seen them win cases following a divorce. Currently, most states don’t honor that presumption. Some courts categorically state that the judgment doesn’t favor one gender over the other and fathers’ custody rights are becoming the norm.
Here are some of the things the child custody court considers before determining legal custody.
Before the separation, which parent was actively involved in the day-to-day lives of the children? These are activities such as attending meetings at school, attending doctor appointments, feeding, clothing, and bathing.
In most cases, the father doesn’t assume the role of a primary caregiver. However, there is a surge in the number of full-time working moms and stay-at-home dads. It’s therefore impossible to clearly say that mothers are the primary caregivers and therefore deserve more parental rights.
When using the primary caregiver as a determinant to who lives with the children, the courts will also assess the children’s best interests. This means that an analysis of who can best take care of the children is done. Besides, the courts will also look at which parent is more willing to take care of the children following a divorce.
The courts will also assess the bond between a parent and a child before determining a custody case. When younger children are involved, they most likely have a closer bond with the mother. At a tender age, the mother feeds, bathes, and clothes the children.
This is not to entirely disregard the fact that some men are actively involved in these activities when their children are young. Active fathers will most certainly have more parenting time in the case of a shared custody case.
Despite a divorce, parents should maintain mutual respect towards each other, especially in front of their children. A judge may be wary of granting custody to a parent who physically abused the other in front of the children. A parent who physically or emotionally abused the children may also lose the battle over custody.
In any of these cases, your child custody lawyer may suggest a custody evaluation. The child custody court will appoint a Guardian Ad Litem, psychologist/social worker, and probably a parent coordinator to determine where and which of the parties should care for your children, and on what type of parental visitation schedule between each of the homes unless sole physical custody is granted to one parent.
Most courts all over the US advocate for child custody mediation over litigation in custody issues. Mediation involves using a third party to help parents going through a divorce agree on certain aspects of the child’s welfare.
The child custody mediation process is more seamless compared to a custody battle in court. Mediation doesn’t involve a child custody lawyer or witnesses. The mediator isn’t actively involved in the decision-making but rather helps the parents come to an agreement without any more conflict.
Mediation can take about 10 hours over 1-2 weeks. This is unlike litigation which could drag out for months or even years. Besides, parents who can agree post-divorce without resorting to custody trials can handle co-parenting better.
During a court ruling, a mediator’s opinion or recommendation may be required by the family court judge. If you’re worried about the mediator sharing details about the meetings with the court, it’s important to ask before agreeing to the arrangement. In some states, the mediator remains impartial while in others, they will contribute towards the final ruling.
In certain circumstances, the court may award custody and visitation rights to grandparents. The laws surrounding grandparent custody and visitation may vary from state to state.
Grandparents are only granted custody as the primary caretaker if the parents aren’t able to parent effectively.
The courts have to examine if granting the grandparents custody and visitation is in the children’s best interests.
These are some of the considerations the court has to make.
Once a grandparent has been granted custody rights, getting custody back from grandparents is another ordeal you would have to fight.
Yes, you can modify court orders. If a mutual agreement happens between the parents, the courts will sign the new custody papers and nullify the older one.
If modification of the parenting agreement is done through the court, the parents must prove two things: firstly, that the changes are in the child’s best interests. Secondly, the parents must also prove that substantial changes have occurred since the last court order to warrant the modification.
Some of the circumstances that will always warrant a modification are if the children are subject to harassment by a step-parent. Another case is whereby a child feels they want to live with the noncustodial parent, in which case the judge will look at the child’s age. The custodial parent may also decide to move to a different location, and taking the children would affect their relationships or education.
Child custody can be very contentious, especially where parents cannot agree. The court will grant child custody to one or both parents with the children’s best interests at heart. A child custody dispute can be solved either through litigation or mediation. Use every avenue available to amicably agree upon what is best for your children and only hire a custody attorney if it is the last resort you have to agree on one of the different types of custody.
If you or your child is ever in a situation that isn’t best for them consider a temporary or emergency custody order from your court. An immediate call to a child custody attorney should be made.
We understand family issues are diverse. For this reason, we have written lots of articles relating to the subject of child custody and when you will have to pay child support.
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