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Children and the Divorce Process

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What Happens with Children When Their Parents’ Divorce?

Any time a couple files for divorce and children are involved, legal decisions and arrangements must be made for the children. Child custody and visitation is a major focus of many divorce and legal separation cases, in addition to property concerns and other issues. For example, many divorce decrees has a separate section which discusses child custody and visitation arrangements issued by a family court judge. Once the divorce is finalized, all parties must abide by the custody order and the visitation schedule.

How is Child Custody Determined?

Parents can either resolve their child custody cases out of court (through mediation or arbitration) or in front of a family court judge. In all circumstances, the overarching consideration in making any decision regarding the child is determining whether the “best interest of the child” is being met. In general, the child’s “best interests” means that custody and visitation is made with the ultimate goal of encouraging the child’s happiness and mental health. The following factors are typically considered:

  • The child’s age, sex, and educational level
  • Each parent’s living situation
  • Each parent’s mental, physical, and emotional capacity
  • Each parent’s relationship with the child prior to divorce
  • The child’s preference if the child is of legal age
  • Each parent’s financial background
  • The willingness of the parents to cooperate with one another
  • Any instances of violent (physical, verbal or emotional) abuse or substance abuse

Divorce Case Considerations

If one parent is deemed unfit for custody of the child or children, perhaps because she is abusive, financial unstable, or mentally unstable, the other parent is typically awarded full custody of the child. When both parties are considered fit parents, custody of the child may be split equally among both parents.

Legal Issues Affecting Children in Divorce

All divorce cases have different facts and circumstances, but there are often many of the same legal issues when children are involved. Some legal problems impacting children during divorce proceedings include the following:

  • Child Custody: Child custody is determined by considering the child’s needs first over the parent’s wishes or desires. Child custody orders consider several factors as discussed in full detail above.
  • Child Support: Each state has their own laws and requirements governing child support. Child support is determined by assessing what is best for the child.
  • 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: If divorce requires either one or both of the parents relocating, visitation rights may be affected. (Example: If one parent with primary custody moves out-of-state, how frequently the other parent can visit may naturally be negatively impacted.)

Can Children Decide Which Parent to Live with in a Divorce Case?

The child’s right to choose which parent to live with varies from state to state, but in general, the standards that all states employ is the “Best Interest of the Child” standard. It takes into consideration the child’s preference with regard to who he or she would like to live with. However, the child does not have the legal right to choose one parent over the other to live with. Instead, it is one of many factors that the courts consider in determining what is in the child’s best interest.  

Should I Consult an Attorney?

Divorce can be difficult, especially if children are involved. If you are facing divorce and are concerned how divorce will affect your child or children, consult a skilled family law attorney. An attorney can represent your interests and give you advice so that your child’s best interests are served.

Photo of page author Erin Chan Adams

, LegalMatch Legal Writer

Last Modified: 05-21-2018 01:43 AM PDT

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