The legal term “child custody” defines the legal relationship parents have with their children. There are different types of custody arrangements, but all decisions regarding child custody must be made by a judge. In the past, the mother tended to be granted the role of sole custodian more than the father.
However, courts have evolved to recognize the progressing and changing societal roles of the family, while also recognizing that more mothers are working outside of the home. Historically, it was assumed that the mother was, by default, the person best suited to care for the child, and that mother’s had the strongest relationship with the child.
However, all courts now apply the Child’s Best Interest Standard must apply; meaning the father could just as likely be the better option for the child’s best interests. Most custody laws are now gender neutral, and do not favor mothers over fathers.
Single mothers generally obtain full physical and legal custody over their child. If the mother was single and unmarried at the time of the child’s birth, they will be the custodial parent and granted all of the legal rights that come with that designation. Especially if there was no father listed on the birth certificate and no father came to claim his right over the child at the time of the birth. If paternity was never established, then the single mother would have sole claim over the child.
There are typically only child custody issues when the child’s biological father petitions the court to grant them custody over the child, whether joint or sole custody. These issues can arise whether or not the mother was ever married to the father.
As previously mentioned, all decisions should be made with the child’s best interest in mind. If you are a single mother and you believe your child’s biological father is unfit to be around the child, and therefore not in the child’s best interest, then you may want to request that the family court grant you sole physical and legal custody rights to your child.
The courts do their best to create custody arrangements that are in the child’s best interest. The following are some examples of the various types of custody available to parents upon divorce or separation:
- Legal Custody: Legal custody gives one parent the right and obligation to make decisions about the child’s upbringing, such as their schooling, health care, and religion. This is the most common custody arrangement with many states allowing joint legal custody of the child when both parents are found to be fit. However, there is a lot of room for conflicts to arise in this situation;
- Physical Custody: Physical custody is the right to have the child physically live with you at your home. This also includes the daily care of the child, including: maintaining their schedule, providing clothing, providing meals, and daily transportation.
- Some states allow for joint physical custody, where a child lives at each parent’s home for equal amounts of time. Parents are able to spend the maximum amount of time with their child, but they must live close enough to each other for this arrangement to work. Additionally, the parents would need a workable and amicable relationship to avoid conflict that would affect the child;
- Sole Custody: Sole custody is fairly straightforward, one parent is granted sole legal custody and rights over their child. The other parent is typically only permitted visitation rights.
- Modern courts are tending to move away from this custody arrangement, unless it is in the child’s best interest to be kept away from one parent’s household.
- Some courts grant generous visitation rights when sole custody is necessary. This arrangement is usually the least disruptive to the child, and is common when single parents are involved. However, this arrangement leads to a very limited connection between the child and the excluded parent;
- Joint Custody: Joint custody occurs when parents share the decision making responsibilities. The parents will generally agree to rearrange their schedules to make the arrangement work; if they cannot, a court will set a schedule and order the parents to adhere to it. Joint custody can be joint legal custody, joint physical custody, or both.
- Children are assured continuing contact and involvement with both parents, and some of the burden of parenting are relieved for each parent. The disadvantage to this arrangement is that the children must be shuttled around, and parents who cannot cooperate could harm the children.
Typically, the family court where the parents live is responsible for handling child custody issues. A child custody agreement is a document that outlines the guidelines for custody between parents, and is generally court issued in connection with a divorce or separation proceeding.
It may contain instructions regarding which parent has primary physical custody of the child, which parent has legal custody of the child, and visitation schedules. It is possible to come to a child custody agreement without having to go to a court hearing, but the child custody agreement must be issued by a family court.
Coming to an amicable agreement will relieve much of the stress that comes with determining child custody. The courts are also less likely to intervene with divorcing couples who are able to cooperate and reach agreements on their own. Family mediation, a form of alternative dispute resolution which involves a neutral third party, could be an option as well. It is a way to avoid costly and time consuming litigation.
The child’s biological father cannot just “take the child away,” in fact, this may be considered parental kidnapping. Courts base custody decisions on factors that all consider the child’s best interest. If the father is clearly unfit, it is highly unlikely that the court will transfer sole custody from the mother to the father.
Instead of immediate removal, there is a formal procedure involving a court order, hearings, etc. A child would only be immediately removed from the mother’s custody if the child were in danger or the mother was immediately found to be unfit.
A judge might award custody to the father if the mother has passed, has been found to be a danger to the child, or has expressed an interest in relinquishing her rights as a parent.
However, this goes both ways; this can happen to the father, or the mother. There is no gender bias involved. The child’s age is considered, as well as their physical, medical, and emotional needs. Additionally, the judge will consider each parent’s lifestyle, employment, and financial and emotional capabilities.
Before moving anywhere, whether across town or out of state, you must report to the court your changed circumstances, and file a petition to modify your child custody arrangement. You will be required to prove that the move is within the child’s best interests, such as finding a job that will allow you to better provide for the child. The courts will weigh what both parents want against what is best for the child. Generally, courts will not allow you to move out of state without the court’s permission.
Interstate child custody can get complicated, and there are serious consequences for failing to adhere to these laws. Jail time, fines, and loss of custody are some of the ramifications for moving the child without the court’s permission.
However, if you have never been married to the child’s biological father, and there is no court order regarding custody, you are free to move out of the state and take the child with you. It is absolutely imperative that all child custody issues be resolved before you attempt to move the child out of state.
If you are a single mother facing child custody issues, you will want to consult with a skilled and knowledgeable child custody attorney. They will help you understand your state’s specific child custody laws, file all important documents with the court, and represent you at court hearings. Additionally, the child custody attorney will ensure your rights as a parent are protected.