Child Custody Laws

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 What is Child Custody?

When two spouses terminate a marriage, a court will determine how custody of the couple’s minor children is divided between the parents. Custody involves physical and legal components, two different issues for the court to resolve. Additionally, the court will decide whether one parent should have sole custody of the children or whether the parents should share joint custody of the children.

Contrary to stereotypes and historical practice, courts no longer presume that the mother should be awarded child custody. Courts are more adamant about weighing the best interests of a child in making custody decisions.

They make considerations regarding the physical and mental health of the parents, their ability to provide for the child’s basic needs, their emotional relationship with the child, the lifestyle of the parents, the educational situation of the child, and the preference of the child if they are old enough to communicate a rational preference.

What are the Different Types of Custody?

Giving a parent physical custody implies that the child will reside with this parent. Physical custody can be sole or joint, often depending on how much time the child usually spends with each parent and how close the parents live to each other. However, if a court decides on sole physical custody for one parent, the parent without physical custody generally will have visitation rights with the child.

Physical custody means a parent has the right to have a child live with them. Some states will award joint physical custody when the child spends significant time with both parents. Joint physical custody operates best if both parents live relatively close to each other, as it lessens the stress on children and allows them to maintain a normal routine.

Furthermore, giving a parent legal custody of a child means that the parent has both the right and the duty to make critical decisions about how to raise the child. This is generally granted to both parents jointly, allowing each to impact the child’s education, religious affiliation, and medical treatment.

Parents who violate a court order providing for joint legal custody can face the consequences. The parent whose joint legal custody right is deprived has the right to bring the other parent to court and request a judge to enforce the custody arrangement. However, this is costly and disruptive to everyone in the family, especially the children.

Legal custody of a child implies having the right and the obligation to make decisions about a child’s upbringing. As mentioned earlier, a parent with legal custody can decide on the child’s schooling, religious upbringing, and medical care. In many states, courts regularly grant joint legal custody, meaning both parents share the decision-making.

If you share joint legal custody with the other parent and neglect to include them in the decision-making process, your ex can take a petition to court and ask the judge to enforce the custody agreement. You will not get fined or jailed, which may harm the children.

If you believe the situations between you and your child’s other parent make it impossible to share joint legal custody, and there is a possibility the other parent will not communicate with you about important matters or is abusive, you can go to court and request for sole legal custody.

But, in many states, joint legal custody is usually preferred; therefore, you will have to convince a family court judge that it is not in your child’s best interests. Some states also can award sole custody. One parent can have either sole legal or sole physical custody of a child. Courts usually will not hesitate to award sole physical custody to one parent if the other parent is deemed unfit, for instance, because of alcohol or drug dependency or charges of child abuse or neglect.

However, in many states, courts are moving away from awarding sole custody to one parent and toward expanding the role both parents play in their children’s lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule.

In these scenarios, the parents would make joint decisions about the child’s upbringing, but one parent would be considered the primary physical caretaker, while the other parent would have visitation rights under a parenting agreement or schedule. Courts are fully aware that there may be animosity between you and your soon-to-be ex-spouse. But it is recommended not to seek sole custody unless the other parent truly causes direct harm to the children. Even then, courts may still allow the other parent supervised visitation.

Parents who do not reside together have joint custody, also known as shared custody, when they share the decision-making responsibilities for physical control and custody of their children. Joint custody can exist if the parents are divorced, separated, no longer cohabiting, or even if they never lived together.

Joint custody may be:

  • Joint legal custody;
  • Joint physical custody (where the children spend a significant portion of time with each parent) and;
  • Joint legal and physical custody.

What are the Joint Custody Arrangements?

When parents share joint custody, they generally schedule according to their work requirements, housing arrangements, and the children’s needs. The court will impose an arrangement if the parents cannot agree on a schedule. A common situation is for children to split weeks between each parent’s house or apartment.

Other joint physical custody arrangements include:

  • Alternating months, years, or six-month periods;
  • Spending weekends and holidays with one parent while spending weekdays with the other and;
  • There is even a joint custody arrangement where the children remain in the family home, and the parents take turns moving in and out, spending their time in separate housing. This is called “bird’s nest custody” or “nesting.”

While courts have moved toward granting joint custody more frequently, they will grant sole custody in some cases when it seems to be in the child’s best interests. For instance, one parent might have abused or mistreated the child. A parent’s history of alcohol or drug addiction might make the court more willing to award the other parent sole custody.

Sole physical custody does not necessarily compare to sole legal custody. When a court grants sole physical custody to one parent, the other parent may still have substantial parenting time and a voice in key decisions involving the child. A qualified attorney can provide answers to any questions or concerns that might be involved in the process.

When Do I Need To Contact a Lawyer?

If you are dealing with a current child custody case or are looking to file one. It is important to contact your local child custody attorney in your area to determine the next steps in the process. Different types of custody situations can provide you with the necessary living options you are seeking. An attorney can suggest different options that would best benefit the child.

However, understanding them and researching them will benefit your circumstances later on. Therefore, seeking assistance when needed to grapple with the legal issues surrounding custody battles is recommended. Also, your attorney can keep you updated if there are any changes to the law that might affect your legal rights and options.


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