How to Get Custody of Your Child

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 How Is Child Custody Determined?

Child custody laws can be complex, and state laws on the subject can vary considerably by jurisdiction. Determining custody rights over a child or children must be done carefully, as these decisions can have profound and lasting impacts on the child.

When determining child custody rights, child custody law places the child’s interests and background above any of the parent’s personal preferences. This is known as the child’s best interest standard, and it is the main standard for child custody cases. What this means is that courts will only make child custody decisions if they benefit the child. As such, if a parent is considering how to get custody of their child or how to become the custodial parent, they must prioritize the child’s best interests.

When determining child custody in a family court setting, courts will consider a wide range of factors that might affect the child’s well being. These factors will be balanced against the child’s best interest standard, to ensure that the custody decisions do not harm or negatively affect the child or children in any way.

Some examples of common child custody factors that are used by courts in a divorce or legal separation context 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 both of the parents;
  • Whether the child has any specific health, medical, or psychological and emotional needs;
  • The wishes of the parents, as if both parents agree to a specific custody arrangement, the court will generally choose that arrangement;
  • The child’s wishes; and
  • The overall preferences of the child, especially if they are above a certain age which may vary by state.

An example of this would be how if the child has special medical needs, and one parent is more familiar with those needs than the other, the court will factor this into their determination with regard to custody rights.

What Factors Cannot Be Used To Determine Child Custody?

When determining child custody, there are specific factors that the courts simply cannot use. These may be due to other related laws, such as discrimination laws, which interact with child custody laws and must be adhered to.

Some examples of factors that courts cannot use in a custody determination include:

  • Race: Courts generally cannot form a custody determination based on whether one parent is of a certain race, or if they are in a relationship with a person of a certain race. Racial background is generally not used in custody decisions, unless it can be shown that a consideration of race would benefit the child. An example of this would be placing the child with the parent of the same race in order to preserve their cultural connection.
  • Religion: Courts are not allowed to base child custody arrangements on religious issues or preferences. However, there may be an exception in cases in which the child is being harmed or placed in danger by specific religious practices;
  • Gender: Traditionally, family courts automatically awarded child custody to the mother figure, as it was assumed that they were the primary caretaker for children. However, courts now focus on a broader set of factors when determining child custody and custodial parent arrangements; and
  • Disability: Simply having a legally-recognized disability does not automatically prevent a parent from obtaining child custody. Rather, courts will consider whether the disability would prevent the parent from performing their parental duties if they were granted custody.

How Can I Get Custody Of My Child?

To reiterate, child custody is decided on several different factors:

  • The maturity of each parent or guardian;
  • The financial and economic background of each party involved;
  • Whether the child has any special needs; and
  • Previous involvement with the child.

An example of this would be how custody may be granted when one parent is considered to be legally unfit to raise or care for their child. In such cases, the other parent may be granted full or majority custody rights in raising the child.

After the courts consider all relevant factors, most courts focus on which parent will provide the best and most stable environment for the child. They will also consider which parent has the better relationship with the child, if that is an issue; the parent that has been the primary caretaker is generally awarded custody. In regards to older children, courts award custody to the parent that provides the best:

  • Education;
  • Neighborhood;
  • Life; and
  • Religious surroundings for the child.

What Else Should I Know About Getting Custody Of My Child?

Child custody agreements can essentially be categorized in one of two ways:

  • Legal Custody: This determines who makes important decisions for the children regarding healthcare, education, and their general welfare; or
  • Physical Custody: This determines who the children physically live with for the majority of the time.

Additionally, there are two types of legal custody:

  • Joint: Both parents share the rights and responsibilities to make important decisions regarding the children; or
  • Sole: Only one parent has the right and responsibility to make important decisions regarding the children.

Another common type of custody would be joint custody, in which the parents split custody time and rights. The division of time and custody responsibilities generally depends on the parent’s background, as well as the judge’s decision.

Some examples of common child custody guidelines that each jurisdiction adheres to include:

  • No custody arrangements will be made if they will put the child in potential harm or danger of abuse and/or neglect;
  • Because custody orders are set and enforceable by law, violations may be punished by contempt orders and other consequences;
  • Both parents must be honest and forthcoming regarding providing information related to a custody determination, as this will help prevent fraud or abuses of the child custody arrangement; and/or
  • To reiterate, all custody decisions should be made in the child’s best interest.

Courts may require full custody under specific circumstances, such as when:

  • One parent has become ill or is otherwise incapacitated;
  • The other parent is not considered to be legally fit to raise a child;
  • The other parent has been incarcerated or has a negative criminal record; and/or
  • There has been a history of abuse or neglect by one parent.

Child custody orders can be modified according to the needs of the child, as well as the needs of each parent. A new or modified custody order can be obtained if there are any “major life changes” that would affect the way in which the child is being brought up. Examples include:

  • Remarriages;
  • Moving to a different residence;
  • New jobs; and
  • Loss of a job, among other factors.

Such changes must be presented to the judge, who will review the information and make adjustments to the custody and visitation order as needed.

Do I Need A Lawyer To Get Custody Of My Child?

You should hire a qualified child custody lawyer in your area if you need help with a custody determination. An attorney can ensure that your parental legal rights are protected according to your state’s specific family laws, and will also be able to represent you in court as needed throughout the process.


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