The legal term child custody involves guardianship of a minor, and refers to both the legal and practical relationship between a parent, or legal guardian, and a child. Child custody laws can be complex, and state laws regarding child custody vary according to jurisdiction.
However, most all states child custody decisions are made based somewhat on the Child’s Best Interests Standard, which considers a variety of factors as to which parent is the best fit to receive custody of their child. This means that the child’s best interests will likely prevail over the parent’s desires or requests.
It is important to understand the difference between physical and legal custody. Physical custody refers to the time you physically spend with your child. When you have physical custody of your child, you are responsible for making basic, day-to-day parenting decisions.
Legal custody involves your right to make important decisions for your child, such as those involving education, healthcare, religion, etc. Although one parent may have primary physical custody, both parents typically share joint legal custody.
When determining the mother’s rights to child custody, the court will first consider whether or not the child was born out of wedlock. Custody rules that apply to unmarried parents often vary based on jurisdiction. If the child was indeed born out of wedlock, establishing parental rights can make the process of establishing child custody much more complicated.
By law, custody of the child is automatically granted to the unwed mother. However, there are instances in which this is not in the child’s best interest, in which case the unwed, biological father of the child has a right to pursue custody.
As the primary caretaker of the child, the mother has complete legal authority to make all decisions regarding their child’s welfare. Some examples include:
- The right to decide who is allowed to see their child, and for how long;
- The right to decide where the child lives;
- The right to enroll the child into any school of their choosing;
- The right to make the child’s medical decisions, assuming it is in the child’s best interest;
- The right to receive public benefits for their child, such as food assistance; and
- The right to decide extracurricular activities, religious affiliation, travel, etc..
Essentially, the mother has the right to decide any important aspect of their child’s life, just as any parent with legal custody may decide. In the case of a same sex marriage, in which a child would have two mothers, the law is not yet set and clear as it is in heterosexual cases.
Because of this, it is more difficult to determine what is a relevant factor when deciding the custody rights of two mothers. Fundamentally, the same basic principles will apply and likely will not impact the rights of the parents in such a situation.
- How are a Mother’s Rights Determined for a Child Born to Married Parents?
- Can Court Custody Orders Be Changed or Modified?
- Can a Mother Prevent a Father From Seeing His Child?
- Are There States That Favor Mothers in Custody?
- How to Win a Child Custody Case for Mothers
- Should I Hire an Attorney to Assist with Obtaining Custody of My Child?
One of the main factors to be considered is in regards to paternity/maternity assumption. That is to say, it is assumed that a child born to married parents is, biologically, both the mother’s child and the father’s child.
Although in the past the courts favored the mother when awarding custody rights, this is not true in recent times due to the fact that gender roles are changing and more women are working outside of the home. As such, most custody laws are now gender neutral and these laws do not necessarily favor the mother over the father.
As previously mentioned, the court will base their decision on the child’s best interest standard. No matter the state, the court will focus on similar factors. Some of these include:
- The child’s physical and emotional health;
- The strength of the parent-child relationship with each parent;
- The stability of each parent’s home environment;
- Whether a parent has failed to pay child support;
- Each parent’s willingness to parent the child;
- Any evidence of violence or domestic abuse; and
- The child’s wishes if they are of an appropriate age to express a preference.
If the child was adopted by the divorcing couple, the process is the same. Adoption establishes a legal parent-child relationship; thus, any decisions regarding child custody for an adopted child are made in the exact same way as they would if the child were the divorcing couple’s biological child.
It is in both parents’ best interests to maintain a polite and cooperative relationship with the child’s other parent, as any open hostility towards the child’s other parent may hurt the agressing parent’s custody claim, or even result in a reduction of their awarded physical custody.
Once a custody order or agreement has been finalized, both parents must follow all of the conditions detailed within the order. However, any court-ordered child custody decisions may be changed or modified if there has been a significant change in circumstances since the finalization of the order. Some of the conditions in which a court will modify an existing child custody order include:
- One parent violates the existing child custody order or is otherwise found to be in contempt of said order;
- There is evidence of domestic violence or child abuse in the home;
- One parent has located which renders the current order impractical;
- One parent has lost the ability to meet the needs of the child;
- The child’s needs have changed; or
- The current order is somehow no longer in the child’s best interest.
It is much easier to get a court to modify an order if both parents agree to the proposed changes. Some jurisdictions require a waiting period before a modification of a custody order is permitted, unless there is evidence that the child is in imminent danger, which would warrant an immediate modification.
Modifying a child custody order requires filing a petition with the court. It is important to note that the exact procedure to modify an existing child custody order varies from state to state.
Yes, but not without reason. The mother would need to prove to the court that the father is somehow unfit as a parent, or that his involvement is not in the child’s best interest. Depending on the specific child custody order, the mother has no right to remove visitation rights from the child’s father without court interference.
However, if there is evidence of family violence caused by the father, then a mother may seek to prevent the father from seeing the child through a child protection order.
As noted above, historically custody laws favored granting mothers greater custody rights than fathers. Most custody laws are gender neutral, and the laws do not necessarily favor the mother over the father. However, each state has different custody laws, which in some cases favor mothers in custody.
For instance, in the case of unmarried parents, some states have a presumption that the mother automatically has full custody, whereas other states do not have a similar presumption. Thus, it is important to determine how your local jurisdiction determines custody.
In short, winning a child custody case is the same for mothers as it is for fathers. Therefore, it is important to prepare for your child custody case by actively participating in your case and gathering all documents or evidence that may demonstrate why granting you custody is in the child’s best interest.
Further, any documents or evidence that tends to show that the other parent is unfit, or that granting the other parent custody is not in the child’s best interest should also be prepared. It is important to remember not to do anything that might aggravate your case, such as acting aggressively towards the other parent.
As can be seen, family law, specifically as it pertains to child custody, is complicated and varies from state to state. Thus, it is in your best interest to consult a well qualified and knowledgeable family attorney.
An experienced family law attorney will ensure that you understand your rights as a parent, as well as your state’s laws on child custody. Additionally, they will help you build your case for child custody, prepare for any hearings, as well as represent you in court as needed.