Custody Law

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 What Is Custody Law?

Custody law is a subfield of family law that covers child custody issues. Each state may have different child custody rules.

The fundamental assumption of child custody law is that the child’s interests should take precedence over the interests of either parent. It also assumes that the child’s interests will be best guarded when they have a good relationship with both parents, even if they are separated.

Child custody is the right to make significant decisions concerning the child. Such choices include non-emergency medical care, religion, and consent to join the military, among many others. Basically, any decision that a parent has the authority to make for a child rests with the parent or parents who have custody.

What Are Other Types of Legal Issues Covered Through Custody Law?

Child custody law mainly deals with who will be responsible for the proper upbringing of a child.

In addition to the issues listed above, child custody law can also involve other legal matters, including:

What If a Child Custody Order Is Violated?

Child custody laws are treated very seriously and can be enforced quite rigidly. Any court order involving child custody is binding under the law and needs to be obeyed by all the parties involved. One of the primary concerns is that the protection and well-being of a child may be compromised if one of the parents disregards the instructions of a custody order.

Violating a court child custody order may result in severe consequences:

  • Non-violating parents could petition the court for enforcement of the order.
  • Violating parents may need to appear in court and justify why they violated the court order.
  • The court could find the violating parent in contempt of court, leading to jail time.
  • The violating parent could also lose custody rights once granted by the court.

Can Child Custody Rights Be Changed?

Yes, child custody rights often need to change and be adjusted over time as the circumstances change for the child and the individual parents. For example, child custody may move from a sole custody arrangement to a more shared custody arrangement if one parent can demonstrate that they have become fit to engage in more duties.

Child custody rights can be lost if the parent engages in inappropriate conduct for the child or if they become incapacitated or imprisoned. The parties can also file a request to modify an existing custody order as needed.

What Are the Factors to Consider for Child Custody?

When resolving child custody in a family court setting, courts will consider many factors that might impact the child’s well-being. These factors, of course, will be counterbalanced against the child’s best interest standard to ensure that the custody decisions do not damage or negatively impact the child or children in any way.

Some common child custody factors used by courts in a divorce or legal separation context may include:

  • Each parent’s relationship and history of interactions with the child;
  • Whether one parent has been the primary caretaker of the child;
  • The child’s background and adjustment to their home, school, and neighborhood;
  • The mental and physical health of the child, as well as the parents;
  • Whether the child has any specific health, medical, or psychological/emotional needs;
  • The wishes of the parents (if both parents agree to a particular custody arrangement, the court will usually choose that arrangement);
  • The child’s wishes (if the parents cannot agree on a custody arrangement, the courts will give substantial weight to the child’s preferences);
  • The overall preferences of the child, particularly if they are above a certain age (this age may differ by state).

So, for example, if the child has special medical needs, the court will factor this into their decision concerning custody. One parent might be more familiar with the child’s special needs and therefore may be granted more custody rights than the other parent.

What Are the Factors That Courts Cannot Use to Decide Child Custody?

There are also certain factors that the courts cannot use in determining child custody. These may be due to other related regulations, such as discrimination laws, that interact with child custody laws and must be obeyed.

Some factors that courts can’t use in a custody determination include:

  • Race: Courts normally cannot form a custody determination based on whether one parent is of a certain race or if they are dating a person of a certain race. Racial background is normally not used in custody decisions unless it can be shown that consideration of race would benefit the child;
  • Religion: Courts are generally not permitted to base child custody arrangements on religious matters or preferences. There may, however, be exceptions in cases where the child is being abused or placed in danger by specific religious practices;
  • Gender: Traditionally, family courts automatically awarded child custody (or a majority of the custody) to the mother, assuming that the mother was the primary caretaker for the children. Nevertheless, this has changed in recent times, and courts now concentrate on a more comprehensive set of factors to resolve child custody and custodial parent arrangements;
  • Disability: Just because a parent has a legally-recognized disability does not automatically preclude them from obtaining child custody. Rather, courts will look into whether the disability would stop the parent from performing their parental duties if they were granted custody.

When Can You Modify a Child Custody or Visitation Order?

When it comes to custody issues, the child’s best interests will always come first and foremost. If an arrangement has been working and the child is doing well, the court will be reluctant to modify the order. You will need valid grounds to change an existing child custody or visitation order.

Appropriate grounds for modification generally include just cause or a change in circumstances. For instance, a judge may agree to alter an order if the parent who has visitation skipped out on most of the scheduled visits with their child. This could indicate that it is not in the child’s best interest to keep giving an absent parent visitation rights. The judge may decide to put the parent on a trial period or take the visits away wholly.

What Is the Child’s Best Interests Standard in Child Custody Law?

Child custody laws vary by state, but courts consider the “Child’s Best Interest Standard” when regarding the custody and visitation rights of a child, which includes (but is not limited to) the following factors:

  • The child’s background, including age, gender, and mental and physical health;
  • The child’s preference, if they are of a certain age of maturity, usually 12-14 years or older;
  • Environmental concerns such as quality of schools, community safety, and extra-curricular opportunities;
  • The health and maturity of each parent;
  • Each parent’s ability to provide financially and emotionally for the child;
  • The degree of each parent’s willingness to facilitate contact between the child and the other party;
  • Whether there are any siblings or important family members involved; and
  • Social background and lifestyle of each parent.

Do I Need a Lawyer for Assistance With Custody Laws?

If you are looking to establish or alter child custody or visitation rights, it is normally wise to consult with an experienced child custody lawyer. An experienced child custody lawyer dealing with the complicated court system can work to protect your relationship with the child.


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