Child custody refers to various rights that a parent has in raising a child and making decisions on their behalf. Child custody rights allow a parent the right to make legal and medical decisions on behalf of the child. In general, family law courts decide custody matters. All custody decisions are made with the child’s best interest in mind.
There are various different types of child custody arrangements. For instance, custody could be joint custody in which parents share custody of the child. Or, custody could also be sole custody in which one parent cares for the child.
Physical custody determines which parent a child lives with, and who provides for their needs on a daily basis. Legal custody determines who has legal rights over the children, and who gets to make decisions on their behalf.
When determining child custody, the court looks at a variety of different factors, which may include:
- Whether a custody agreement already exists;
- The parents’ desires regarding custody;
- The child’s desires;
- Each parent’s ability to mentally, emotionally, and physically care for the child;
- Whether changes will be made to the child’s upbringing, such as with their school, daycare, after-school programs, or other activities that are location-specific; and/or
- Any history of abuse or neglect.
The “child’s best interests” rule is the guiding standard in child custody and visitation cases. it attempts to provide a standard whereby the child’s best interests rule, not necessarily the desires or preferences of either parent.
In the past, primary custody was generally awarded automatically to the mother. This was based on the presumption that women are natural caretakers for children. However, custody cases in the United States moved away from such presumptions, as parental arrangements become more gender-neutral.
Custody and visitation laws vary from state to state, as the laws governing these issues are different. An experienced lawyer in your state can help determine what your specific rights are in the state of your residence.
Violating a custody order is actually a form of breaking the law. Since the custody order is a court order, both parents are bound by this order. When a parent violates the custody order, there are legal consequences.
The most common form of a custody violation occurs when a parent is late to either pick up or drop off the child. This can disrupt the child’s overall schedule, and may cause undue stress and anxiety. It can also interfere with the custody or visitation rights of the other parent. The divorce process alone is often difficult enough for a child; a parent failing to meet their obligations or arguing with the other parent in front of the child can be very traumatic.
Another violation occurs when a parent fails to show up for the exchange of the child or children. This may be due to negligence such as forgetting the date of the exchange. However, oftentimes, one parent may decide to run off with the child or take a vacation with the child without the court’s permission. This can also lead to serious issues for the parents and child.
First, you need to consider whether police action is necessary. If you believe your ex has kidnapped your child (i.e., parental kidnapping), or you don’t know where they are, you may need to call 911 immediately. Local police enforcement authorities will need to get involved to find your child and bring him or her home safely.
If your ex crosses state lines, then the FBI may also get involved, and federal laws may be violated at that point. If the situation is not really an emergency, you can try to work things out with your ex-spouse. However, this can sometimes prove to be an unwise decision.
For instance, the ex may try to continue to take advantage of you in the future by continuously breaking the custody order. This will cause further stress for you and your child. The best course of action is to file a motion for contempt against the ex.
A motion for contempt of court in a child custody context simply alleges that the ex violated the court’s custody order. This can happen by them either doing or failing to do something. You must first serve the motion on your ex, and the ex will then be given a limited amount of time to respond.
After this, hearing will be set, and at the hearing, you will argue your motion for contempt of court. When preparing for arguments, make sure you gather information, documentation, and evidence to prove that your ex had violated the custody order. You may also choose to call any important witnesses to testify at the hearing.
It is recommended that you have someone watch your child for you while you attend court to avoid your child being traumatized by the court proceedings.
Two main types of contempt exist: civil contempt and criminal contempt. Criminal contempt occurs when a party misbehaves in the courtroom, such as yelling or acting violent in the courtroom. Civil contempt occurs when a party fails to obey a judge’s order (such as when they fail to obey custody orders).
A violation of a judge’s order will usually result in a finding of civil contempt, and the party will be sanctioned. Sanctions can include:
- Giving sole custody to the other parent;
- Reducing visitation;
- Requiring court-supervised visitation;
- Criminal charges/Jail time; and/or
- Monetary fines.
Keep in mind that failing to pay child support would also be considered a form of contempt of court, which means failing to keep up with child support can result in jail time. If you are unable to pay child support, be prepared to show your financial records to the court and file a petition for reducing child support.
If a motion for contempt is filed, a judge will hold proceedings on the matter, which are very similar to a trial. Evidence and witness testimony can be presented during the proceedings. In many states, the evidence needs to be submitted using the rules of evidence. You may need to hire child custody lawyer near you, as they will know how to properly conduct a motion for contempt of court hearing.