Introduction: Child Custody Agreement
The right child custody information can help you prepare for your case and ultimately win child custody. Here, you’ll find parents’ top 20 questions about child custody to help you approach a child custody hearing with confidence.
What’s the Difference Between Legal Custody and Physical Custody?
Legal Child custody refers to the ability to make decisions on behalf of your child, whereas physical custody refers to where the child lives. Technically, a parent can have legal custody without having physical custody. Consider all of the child custody options available to you, including shared parenting and bird’s nest custody, before making a decision about what type of custody you want to pursue.
Does an Unmarried Mother Need to File for Custody?
Some states expect unmarried mothers to file for custody, while other states presume that unmarried mothers automatically have custody of their children. Read up on the child custody laws in your state to find out whether you need to officially file for custody.
What Are the Child Custody Laws in Your State?
Child custody laws differ from state to state. Therefore, any parent who wishes to file for child custody or defend his or her claim to child custody will need to become familiar with the child custody laws in the state where the child resides.
How Do the Courts Determine Who Gets Custody?
A lot of factors go into a court’s decision about which parent should be awarded child custody. Generally, those factors include the parents’ wishes and ability to provide for the child, in addition to the current child custody arrangement and the child’s existing relationship with each parent.
What Other Factors Do the Courts Consider When They Determine Custody?
You should also know that the courts will consider whether each parent will be supportive of the child’s ongoing relationship with the other parent, in addition to the child’s age, any special needs, medical needs, and other pertinent factors.
What Do the Courts Mean by the Best Interests of the Child?
The courts want every decision they make to reflect what is best for the child, and each state defines its own standards for defining what the “best” or most ideal situation should look like.
While these standards do vary from state to state, family courts generally presume that it is in a child’s best interests to maintain relationships with both parents to whatever extent possible, particularly if the child has enjoyed a close relationship with both parents up to this point.
Do You Need a Child Custody Lawyer?
In most cases, it is advisable for you to at least participate in a free consultation with a lawyer before making this decision. If cost is a concern, contact Legal Aid in your state or participate in a free legal clinic offered through a nearby law school.
Do We Need to File a Parenting Plan With the Courts?
Some states require parenting plans, while others do not. Read the child custody laws for your state to find out whether your state requires parents to file a written parenting plan in family court. You should also consider writing a parenting plan, even if it’s not required, because it will force you and your ex to make thoughtful decisions about how you plan to collaborate on raising your children together.
Will Your Child’s Special Needs be Given any Consideration?
Yes, the courts will take into account a child’s special needs, particularly where medical and/or developmental issues make it difficult for parents to share custody. The courts will still want to see that the parents are willing to cooperate with one another and ensure that the child is able to enjoy an ongoing relationship with both parents.
If one parent moves out and leaves the kids with the other parent, does it hurt the moving parent’s chances of getting custody at a later date?
In a word, yes. Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody at a later time it’s unwise to leave the children behind. The parent who leaves sends a message to the court that the other parent is a suitable choice for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children’s regular routines.
If a parent must leave the familial home (and wants to be the primary physical custodian), the moving parent should take the children along and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without that parent’s consent or knowledge. Family law judges frown on a parent who removes the children from the home without seeking the court’s recognition. A judge may order that the children be returned to the family home, pending future proceedings to determine physical custody.
Are courts more likely to award custody to mothers than to fathers?
In the past, most states provided that custody of children of “tender years” (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what’s in the children’s best interests, without regard to the parent’s gender.
As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children’s daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.
If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what’s best for the children. So if you think that you should have primary custody and that you can persuade the judge that it’s in the kids’ best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.
Does custody always go to just one parent?
No. Courts frequently award at least partial custody to both parents, called “joint custody.” Joint custody takes one of three forms:
• joint physical custody (children spend a substantial amount of time with each parent)
• joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
• both joint legal and joint physical custody.
In some states, including New Mexico and New Hampshire, courts are required to award joint custody, except where the children’s best interests — or a parent’s health or safety — would be compromised. Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement. For more information, see Types of Child Custody.
Who determines how much visitation is reasonable and fair?
When a court awards physical custody to one parent and “reasonable” visitation to the other, the parent with physical custody is generally in the driver’s seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.
Unfortunately, it sometimes translates into little visitation time with the noncustodial parent, resulting in disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children. For more information on visitation rights, see the Child Visitation FAQ. Or, for more about parenting agreements, see Building a Parenting Agreement That Works, by Mimi Lyster Zemmelman (Nolo).
Is mediation the best approach to solving disagreements about child custody?
Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute. The mediator does not have power to impose a solution on the parties, but assists them in creating an agreement of their own. (In some courts, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement. If you’re concerned about whether the mediation is confidential or whether the mediator will be reporting to the judge, find out how your court does things before you get started.)
There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.
• Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
• Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
• Mediation enhances communication between the parents and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.
Additional Resources
To find a family law mediator in your area, see the Association for Conflict Resolution website www.acrnet.org.
For more information on mediation, including how mediation or collaborative divorce can help you come to an agreement, see Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine Stoner (Nolo).
What factors do courts take into account when deciding who gets custody of the children?
Almost all courts use a standard that gives the “best interests of the child” the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends on many factors, including:
• the child’s age, sex, and mental and physical health
• the parent’s mental and physical health
• the parent’s lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
• the emotional bond between parent and child, as well as the parent’s ability to give the child guidance
• the parent’s ability to provide the child with food, shelter, clothing, and medical care
• the child’s established living pattern (school, home, community, religious institution)
• the quality of the child’s education in the current situation
• the impact on the child of changing the status quo, and
Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment, and which parent will better foster the child’s relationship with the other parent. With younger children, this may mean awarding custody to the parent who has been the child’s primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships.
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