Top Ten Child Custody Questions
Below are the Top Ten Child Custody Questions parents often ask in a custody dispute:
1) What Factors Does a Court Consider When Determining Child Custody?
All child custody determinations are made according to the “Child’s Best Interest” standard. A court may consider several factors, some of which may be related to the child and some of which relate to the parents. Factors related to the child may include:
- Considerations of the child’s age, sex, and mental/emotional/social development
- The degree of emotional “attachment” of the child to each parent
- The child’s ability to adjust to family arrangements and school environments
- The child’s preferences, if they are of legal age or are deemed capable of rendering sound legal decisions (usually at about 12-14 years old in most states)
Some of the parental factors may include:
- How involved each individual parent has been in the child’s upbringing
- The physical, emotional, social, and financial stability of each parent
- The willingness of each parent to act cooperatively with the other parent
- The geographic residence of each parent
- Any history of child abuse or domestic violence.
Again, each of these factors must be analyzed by the court in light of the child’s best interests. A judge will not grant custody to a parent simply because they are financially more capable- the parent must be able to prove why the child would benefit if they are granted sole custody.
2) What is Sole Custody?
Sole custody refers to a custody arrangement wherein one parent assumes all or nearly all of the child-rearing responsibilities after a divorce. The definition of sole custody may differ according to jurisdiction. In most states, “sole custody” usually means that one parent has both physical and legal custody of the child.
Thus, if a parent is granted sole custody of a child it usually means that the child lives with them and that they are responsible for making important decisions for the child. The “non-custodial parent” usually makes financial contributions through child support, and may be granted partial or limited visitation rights depending on the circumstances.
3) Which Parent is More Likely to be Granted Sole Custody- the Father or the Mother?
In the past, it was common for judges to award sole custody of young children to the mother. The father would then provide child support and be granted visitation hours. It was traditionally assumed that the mother would have more time to commit to the child, while the father would be more financially capable than the mother.
However, this practice has been dropped by many states. Instead, the court will grant sole custody based on the child’s best interest. For example, if the mother works a 60-hour work week, the judge may decide that it is in the child’s best interest to grant sole custody to the father.
Many parties in a divorce still base their petitions on outdated custody practices. It often happens that a father does not understand his parental rights because he assumes that the court will award custody to the mother. He may not be aware that he can argue for sole custody if it will benefit the child.
4) What is “Shared Custody”?
Shared custody refers to a custody arrangement wherein both parents assume some responsibility for the upbringing of the children. Shared custody can be divided into two types: Joint Custody and Split Custody.
Joint custody is where both parents equally share legal and physical custody of the children. Both parties are entitled to make decisions for the children, and are usually granted an equal amount of time with the children through an alternating visitation schedule.
Split custody occurs where there are multiple children involved. In split custody, each parent may be charged with responsibility for some of the children, while the other parent is responsible for the other siblings. Shared custody may also involve some form of non-parental custody, such as when a grandparent assumes custody of a child.
5) What is Child Support and What Does it Cover?
Child support refers to monetary payments that are made by one parent to another in a divorce case. Child support laws usually require the non-custodial parent to provide for the child’s basic needs like food, clothing, shelter, and education. The non-custodial parent is usually not required to provide for unnecessary expenses such as luxury items.
Because of the difficulty in enforcing child support payments, it is best if a child support agreement is approved by a court so that it is backed by the force of law.
Who Decides upon Visitation Schedules?
Visitation schedules must be created in a manner that serves the child’s best interest, while at the same time being fair for both parents. In some jurisdictions, if one parent is awarded sole custody, they will also be allowed to set the visitation schedule.
In some cases, the parents can mutually agree upon a visitation schedule and then submit it to the judge for approval. However, if the parents cannot reach a suitable visitation agreement, then the court will have to create the visitation order for the parties. Again, all visitation schedules should revolve around the child’s needs and not the parents’.
6) Which Parent is Granted Custody if the Couple is Not Married and There is No Court Order?
This will depend on the individual state laws. In some states, an unmarried woman is deemed to be both the sole and legal custodian of the child unless a court order states otherwise.
In other jurisdictions, the male partner of an unmarried woman may be granted custody rights if the court names them as a “presumed father”. This involves several eligibility steps such as signing an affidavit of paternity. However, a man who believes that he is the father of a child born out of wedlock should not attempt to gain physical custody of the child without the approval of the court.
7) Can I Bring My Child With Me If I Move Out-of-State?
A custodial parent usually cannot move their child out of state without obtaining the court’s approval. This is because child custody laws can vary by state- moving to a different jurisdiction can create problems, especially for the other parent’s visitation rights.
Before attempting to move out of state with a child, the custodial parent should seek a petition to modify the custody or visitation order. In doing so, they will avoid potential criminal charges. A judge will usually approve an out-of-state change of residence if it is necessary and beneficial for the child’s upbringing (such as parent relocation due to a new job).
8) Can I Change My Child’s Last Name From the Father’s Surname to my Surname?
Even if the other parent is not involved in the child’s life, a custodial parent cannot simply change their child’s last name without legal authorization. Again, changing the child’s last name will not be approved unless it meets the “child’s best interest” standard. The judge will have to consider how the name change will affect the child. For example, if the child will suffer embarrassment or discomfort due to the name change, it probably won’t be approved.
9) Can Child Custody Orders be Changed or Modified?
Yes- a child custody order can certainly be modified after they have been issued. In fact, most judges will draft a custody order in a way that anticipates the many changes that can occur realistically in the future. For example, if the custodial parent is one parent is no longer fit to care for the child, child, then the court will consider issuing a joint custody order or granting the other parent sole custody.
If a child custody order must be modified, it usually requires another hearing to re-determine each parent’s custody rights according to the child’s best interests.
10) Do I Need a Lawyer for Issues with Child Custody?
Child custody issues can often be difficult to deal with. If you are involved in a dispute over child custody, you may wish to contact a family lawyer for advice. Your attorney can assist you throughout the custody hearings so that the child’s best interests are fully met. It is best to contact an attorney before the proceedings begin, so that they can help you in preparing your case.
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Last Modified: 07-12-2011 11:56 AM PDT
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