Children and the Divorce Process
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What Part Do Children Play in the Divorce Process?
Generally speaking, children are not allowed to contribute to major decisions in a divorce case, unless they have reached the majority age (usually 17 or 18 years old in most states).
This means that issues such as child custody/support, visitation schedules, and relocation are to be decided collectively by the judge and the parents. If the parents cannot reach a mutual agreement, then such major decisions will have to be concluded upon by the judge.
In every divorce case where children are involved, the judge must base important decisions upon the “Child’s Best Interest Standard”. This means that the court must consider the needs and desires of the child first, before taking into consideration the wishes of either parent. For example, a judge will not grant custody to a parent if it will negatively affect the child’s upbringing, even if the parent does not agree with such a conclusion.
What Types of Legal Issues Affect Children in the Divorce Process?
While every divorce case is going to be different, there are several common legal issues that arise if children are involved. These legal issues are often the most important part of the divorce proceeding, especially if the parents are in agreement on all other factors. Some of the legal issues that may affect children during divorce proceedings include:
- Child Custody Arrangements: Child custody is always determined in a way that focuses on the child rather than the parents. Child custody orders take into account several factors surrounding both the child and the parents
- Child Support: Every state has different laws and requirements that govern child support. Again, child support is determined according to what is best for the child, not the adult parents.
- Visitation Rights: Parents can sometimes reach a mutual agreement regarding the visitation schedule. However, mediation may be required if they cannot reach an agreement.
- Protection from Child Abuse: If there is a history of child abuse it may affect the allocation of various rights, especially custody and visitation rights. Domestic abuse or spousal abuse will also negatively affect custody rights, even if the child was not the victim of the abuse. Further exposure to a violent environment must be avoided.
- Relocation: Sometimes the divorce will involve one or both of the parents relocating to a different area. This in turn may affect visitation schedules and child support (for example, if a new job is involved)
- Citizenship & Immigration Status of Parents: The citizenship status of a parent can also have affects on the child, especially if the citizenship of the child is also in question
What Factors Are Considered When Using the “Child’s Best Interest” Standard?
The main idea is not to disrupt the continuity of the child’s upbringing; the court will do their best to make sure that any decisions do not create major disruptions in the child’s life. The “Child’s Best Interest" Standard involves an analysis of many different factors, which may include:
- The child’s age, sex, educational level, and physical constitution
- The history of interaction between the child and each individual parent, including the degree of emotional attachment of the child to a given parent
- The child’s level of adjustment in their current school and play environment
- The mental, physical, and emotional capacity of each parent
- The financial background of each parent
- The willingness of the parents to cooperate with one another
- Any instances of violent abuse or substance abuse
- The preferences of the child, if they are of legal age to formulate their own decisions
Thus, the “child’s best interest” actually involves the background of both the child as well as each individual parent. This means that any determination that involves children will be subject to a thorough analysis of all the relevant factors.
Do I Need a Lawyer for a Divorce where Children are involved?
Divorce can be a difficult process, especially if it involves children. If you are facing divorce, you may wish to consult with a family lawyer for advice and representation. Your attorney can help provide you with valuable advice so that the best interests of your children are served.
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Last Modified: 07-18-2014 12:25 PM PDT
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