This article will discuss the Top 10 child custody Issues in the United States. Child custody is one of the most important decisions that courts are required to make in connection with family law issues.
Child custody laws can be complex and can vary depending upon the state in which the case is located. A court’s determination of child custody rights may have a profound impact on the child which may last for years and, therefore, must be done carefully.
It is important to be aware that the court will examine the issues through the lens of the child’s best interest standard, not based on the wishes or preferences of the parents. This means that a court will only make decisions which benefit the child or children involved.
1. Which Parent has the Right to Sole Custody Without a Court Order?
In the majority of cases, both parents have equal rights to the custody of their child or children. Although the parents may be permitted to make their own decisions regarding child custody arrangements, in general, they must be approved by the court in order to be enforceable.
The ex-spouses may be able to enter into a child custody agreement which is a written document that outlines the guidelines for custody between the parents. The guidelines for custody generally include:
- Which parent has primary physical custody of the child or children;
- Which parent has been granted legal custody, which is usually the same parent that has primary physical custody rights;
- Whether custody will be split between the parents, or one parent will be awarded more physical custody time; and
- Visitation schedules for the non-custodial parent.
These agreements must be approved by a court in order to be legal and enforceable under state laws. In addition, these agreements are typically entered into during legal separation or divorce hearings.
Although these agreements require court approval, it is possible for the parties to draft their agreement outside the courtroom. This may be done privately with the assistance of the parties’ attorneys or through a method of alternative dispute resolution (ADR), such as mediation.
2. What Does Best Interest of the Child Mean?
As noted above, courts will make child custody decisions based upon the child’s best interest standard. While there is no absolute formula for making these types of determinations, there are some common factors which courts examine, including:
- The child’s background, including their:
- Sex; age; and personal health characteristics;
- Children with special needs or disabilities may be accustomed to a certain environment and accustomed to one parent who provides daily specialized care;
- If the child is at least 12-14 years old, many courts will consider the child’s preferences as an important factors so long as the child demonstrates a certain level of maturity;
- A child’s preferences, however, are not a substitute for other factors. Simply because a child prefers one parent over the other does not override a court’s consideration for the other factors;
- Environmental factors including:
- the quality of education in each parent’s school district;
- the safety of each parent’s neighborhood; and
- the proximity to other extracurricular activities;
- The physical health and mental health of each of the parents;
- The ability of each of the parents to provide emotional and financial support for the child while the child is in their care;
- Although a poor parent will not be prevented from having custody of their child due to their financial status, a court may determine the permanent residence is with the parent who is able to maintain an appropriate home on a long-term basis;
- The stability of each parent’s background and lifestyle;
- A parent who has a job that requires substantial overnight travel may have difficulty securing residential custody unless changes in schedule are made;
- The existence of and the level of attachment to other siblings or important family members;
- Courts often encourage children to maintain their relationships with half siblings and other family members, such as grandparents; and
- The commitment of each parent to facilitating an ongoing and healthy relationship between the child and the other parent.
3. How Much Weight Should a Court Give to a Child’s Custody Preference?
As noted in the previous section, the court will give more weight to older children and teenagers as opposed to younger children. However, a court is not bound by the custody preferences of the child.
4. What Rights Does Legal Custody and Physical Custody Give to a Parent?
Legal custody provides a parent with the right to make all decision on behalf of the child or children, including:
- Health and medical care and treatment;
- Religion; and
Physical custody provides a parent the right to have the child or children reside with them. It is important to be aware that the parent with physical custody does not have the right to make decisions on behalf of the child if legal custody was awarded to the other parent.
5. Does Joint Custody Work?
Parents who are awarded sole custody by the court have both physical and legal custody of the child or children. A custodial parent’s rights are typically subject to the visitation rights of the non-custodial parent.
Shared legal custody, also called joint custody, is when the parents divide physical and legal custody. These types of arrangements may be difficult because it requires a great deal of cooperation between the parties.
6. What is the Impact of Third Parties on Child Custody Issues?
A court will consider the child’s home environment when determining if a custody arrangement is in the child’s best interests. The personal life of a parent may influence the court if one parent is emotionally or physically harmful to the child.
In many cases, there are third parties who are involved in the lives of children, such as grandparents. A court will consider the extent of the child’s relationship with this third party and make a custody decision which will be least disruptive to all of the child’s family relationships.
7. Can the Custodial Parent Move to Another State With the Child?
Parents who have sole custody of a child or children are not permitted to move to another state if that move will interfere with the rights of the non-custodial parent. If the custodial parent moves without first obtaining court approval, it may jeopardize their custody rights.
8. What Happens if the Custodial Parent Dies?
Generally, state laws will favor awarding custody to a parent over awarding custody to a non-parent. If the custodial parent passes away, the non-custodial parent can apply to the court for a modification of the custody order which awarded custody to the deceased parent.
9. Can a Grandparent Win Custody From the Grandchild’s Parent?
The laws regarding grandparent custody differ by state. However, a court generally gives preference in custody cases to a parent over a grandparent.
In some cases, courts may award custody rights to grandparents. Grandparents who have custody rights:
- Reside with the child or children;
- Provide for their basic needs; and
- Make important decisions regarding their upbringing.
In general for a grandparent to be awarded custody of a child, the child’s parents must both be unable or unwilling to raise the child. Additionally, the grandparent must be able to demonstrate that they are fit to raise the child.
10. Do I Need a Lawyer for Child Custody?
It is essential to have the assistance of a child custody lawyer for any child custody issues, questions, or concerns you may have. Child custody issues are emotional, stressful, and involve complex legal issues.
Your attorney will advise you of your rights, advise you regarding the laws of your state, and help you present the best case for custody in court. Your attorney will also help you during any negotiations, ensure your rights are protected, and represent you when you appear in court.