In cases of divorce, the court of jurisdiction for the divorce proceedings also determines child custody arrangements. Under the common statutory provision, if the spouses have children together while married, the parents have joint guardianship over that child and the parental rights are equal. Each parent has an equal right to the custody of the child when they separate.
When determining the home in which to place the child, the court strives to reach a decision in “the best interests of the child.” A decision in “the best interests of the child” requires considering the wishes of the child’s parents, the wishes of the child, and the child’s relationship with each of the parents, siblings, other persons who may substantially impact the child’s best interests, the child’s comfort in his home, school, and community, and the mental and physical health of the involved individuals.
The parent with custody controls decisions pertaining to the child’s education, religious upbringing, and health care. Courts have the option of choosing one of several types of custody. Temporary custody grants custody of the child to an individual during the divorce or separation proceeding. Exclusive custody endows one parent with all custody rights to the exclusion of the other parent. The non-custodial parent may receive supervision rights or in certain cases, supervised visitation rights. Joint custody grants the parents equal rights in making decisions regarding the child’s upbringing. Courts award joint custody for cases in which both parents can properly perform their duties as parents. If one parent sues for exclusive custody, the suing parent must rebut a presumption that joint custody is in the child’s best interests. A court can award the custody of a child to a third party if the third party has sought custody. The third party is often a grandparent or other close relative. If a marriage results in multiple children, a court has the authority to separate the children and split the custody between parents in accord with the best interest of each particular child. Ordinarily, however, the best interests of a child will be to live with that child’s siblings, in part for reasons of emotional support.
When a court awards exclusive child custody to one parent, the non-custodial parent maintains the right to see and visit the child, absent extraordinary circumstances. If the court’s custody decree fails to mention visitation rights, the law implies the parent’s right to visitation. Thus, an express prohibition on visitation must exist within the decree in order to deny parental visitation rights because visitation rights stem from the fact of parenthood. Even though this strong presumption in favor of visitation rights exists, courts may impose restrictions on visitation by noncustodial parents.
If a party convinces the court that visitation rights would be injurious to the child’s best interests, then the court possesses the authority to deny visitation rights. This best interest of the child analysis, however, does not give dispositive weight to the child’s stated desires because parents inherently possess the right to attempt to repair the parent-child relationship. Cases in which courts deny visitation rights often include noncustodial parents who had physically or emotionally abused the child in the past and noncustodial parents severely suffering from a mental illness that would emotionally devastate the child. Noncustodial parents who are incarcerated or who have a prison record are not categorically denied visitation rights.
If a parent refuses to obey the court’s visitation or custody decree, the court can order the parent in indirect contempt of court.
Types of Child Custody
There are several types of child custody. First, joint custody is where both parents share parental rights and the living arrangements of their child. Courts generally prefer joint custody, but sole custody, where only one parent or guardian has the physical and legal custody over a child, is a possible arrangement as well. Physical custody refers to sharing a home with a child and handling his or her day-to-day care. Legal custody refers to the right to make important decisions on your child’s behalf, including those related to health care, religion, and education.
How to Obtain Custody of Your Child
In most states, family courts determine child custody arrangements based on what is in the best interests of the child. So how is that decided? The courts look at a number of factors in making this determination, such as the parents’ desire and ability to care for the child, the emotional bond between the child and both parents, the adjustment needed if the child has to move to a new area, and, if old enough, the child’s wishes.
Frequently, parents or other adults who have raised a child will be required by the court to take part in mediation. In mediation, you can discuss what you want, any problems you’ve had exchanging the child from one home to the next, and anything else that’s relevant to the situation. Hopefully, you can come to a resolution everyone can live with. Otherwise, the judge may make a parenting plan that neither parent is happy with. However, it’s important to note that if there was domestic violence in your relationship with the other parent, you may be able to skip mediation.
Child Custody Problems
Sometimes issues arise where a parent keeps a child when it’s not his or her turn to care for the child. Occasionally, a parent claims a child on their taxes after it had already been established that the other parent would claim the child. When these problems arise, it’s never the solution to stop paying child support; that will only hurt you in the end. Instead, a child custody modification may be needed.
Hiring a Child Custody and Visitation Lawyer
Going to court for anything can be emotionally draining, but for cases involving your child, it can be extremely difficult to keep calm and ensure everything you need to tell the judge is covered. With an experienced attorney advocating for your rights as a parent, you’re more likely to get the custody and visitation agreement you and your child want.