The term child custody refers to a legal relationship between a parent and their child. Essentially, the parent who is granted legal custody rights of their child during a divorce is granted the right and responsibility to make decisions regarding the child’s upbringing and wellbeing. These decisions generally include education, health care, discipline, religion, and even who the child associates with.
Physical custody refers to the right of the parent to have their child physically live with them. You are not necessarily required to have physical custody over your child in order to have legal custody. For example, your child may live with you half the time, and your former spouse the other half, but you may still retain full legal custody.
In short, child custody proceedings are family law hearings in which child custody rights are determined. Additionally, various other issues related to child custody may be resolved during child custody proceedings. Some examples of this may include:
- Identifying which children are included in the custody arrangement;
- Determining the eligibility and capabilities of each parent involved, in terms of child rearing and their ability to provide for the child;
- Determining if there are any factors that would disqualify a parent from being granted custody rights;
- Determining what sort of child custody arrangement would work best, such as split custody, sole custody, etc.;
- Resolving violations of child custody agreements, such as parents failing to provide access during custody transfer, taking the child out of the country without permission, etc.; or
- Addressing concerns related to visitation rights and schedules.
It is important to note that although laws regarding child custody vary between states and jurisdictions, the child’s best interests will always be considered first and foremost. Thus, all decisions made affecting the child must be made with the child’s health, safety, and welfare in mind. The child’s best interests receive priority over their parents’ desires. In general, the following factors are used to determine the child’s best interests in custody situations:
- The child’s background which could include their sex, age, and personal health characteristics.For example, children with special needs or diabilities may be accustomed to a certain home or parent who provides for their daily specialized needs;
- The child’s preference if they are old enough to state a preference. However, a child’s preference is not necessarily a substitute for other factors;
- Environmental factors such as the quality of education in each parent’s school district, the safety of each parent’s neighborhood, etc.;
- Physical and mental health of each parent;
- Each parent’s ability to provide for their child’s emotional and financial needs. It is important to note that parents who are financially struggling will not necessarily be prevented from obtaining custody of their child due to financial status; and
- The stability of each parent’s background and lifestyle.
Child custody issues are typically addressed is separate hearings that are solely dedicated to each issue needing to be resolved. However, child custody may be determined in other related hearings, such as during a divorce or legal separation proceedings.
In the past, mothers were often granted custody rights almost by default because it was assumed that the child’s mother was the best and main caregiver. However, as presumed gender roles have progressed over time, courts now consider which parent best suits the needs of the child, regardless of the parent’s gender.
When determining a mother’s rights to child custody, the court will first and foremost consider whether the child was born out of wedlock. The court’s consider whether the mother was married or not first, because by law child custody is automatically granted to unwed mothers. However, if granting the mother custody would not be in the child’s best interest, the biological but unwed father then has the right to pursue child custody rights.
Once again, although in the past courts automatically awarded the mother custody, that is not the case today. This is because most custody laws are gender neutral, which means the laws do not necessarily favor a mother over a father. Thus, courts will base their decision on the child’s best interest standard. Therefore, the child’s best interest will be the determining factor in the cases where the child’s parents were married at the time of the child’s birth.
Additionally, another common child custody issue that a woman may face is another party seeking to be awarded custody over the child. For example, the mother’s parents themselves may seek to be awarded custody as grandparents. Additionally, the biological father or the child’s paternal grandparents may seek to prove the mother unfit in an attempt to be awarded child custody.
Finally, another issue that mothers may face is with the visitation rights of the other parties that may be involved in the child’s life. For example, the child’s other biological parent or grandparents may seek to enforce visitation rights, even against the mother’s wishes.
As can be seen, child custody for mothers can often involve numerous different legal issues, whether wed or unwed. Further, child custody laws vary from state to state. Therefore, it is in your best interests to consult with a well qualified and knowledgeable family law attorney in your area if you are having a child custody issue.
An experienced child custody attorney will help advise you of your best legal course of action for maintaining custody of your child. Additionally, they can advise you on your legal rights as a mother. They can also represent you in court if necessary.