Child custody cases are sometimes complicated, and always require a good working knowledge of family law. When facing a child custody issue, you will probably have several questions. Below are the most common questions Legalmatch receives on the issue.
1. What Factors Do Courts Consider When Determining Child Custody?
Courts largely base their decision on what is in the child’s best interest, using the Child’s Best Interest Standard. Some examples of this includes:
- The health of each parent, both physical and mental;
- The special needs of the child, if any;
- The child’s own wishes if they are old enough to say so;
- Whether there is evidence of illicit drug use, or drug/alcohol abuse; and
- Adjustment to the community, such as where they go to school, proximity to other caretakers, etc.
Factors vary from state to state, but courts will generally determine the stability of each parent’s home environment, and their interest and commitment to caring for the child. The overall goal is to make a decision that promotes the health and wellbeing of the child.
Some states favor joint or shared custody, and others prefer that one parent is the primary custodian while the other has visitation rights. Depending on the circumstances, your case may result in sole or shared custody.
2. What are Some Differences Between Sole and Shared Custody?
Essentially, custody can be broken down into two types: sole custody, and shared custody.
Sole custody involves both legal and physical custody, and is court ordered. Physical custody means that the child lives with you, and legal custody means you are in charge of making all of the important decisions regarding your child, without the consent or input of the other parent.
The sole custodian is responsible for the child’s physical needs and legal decision making (decisions about the child’s education, health care, and religion). Depending on the details of your case, the non-custodial parent may still be required to provide child support, and may retain visitation rights.
Shared custody, or joint custody, is when the court orders that both parties be awarded custody. Both parents are the custodial parent, and neither parent is non-custodial. The child spends a substantial amount of time living with each parent, and both of the parents have equal responsibility as to the physical care of the child.
However, it is important to note that even if you have been awarded shared custody, physical custody may not be equally split with the other parent. For example, one parent may have physical custody during school holidays, while the other has the majority of physical custody the rest of the year.
3. Which Parent is More Likely to Be Awarded Sole Custody?
The courts typically determine who should be granted sole custody based on the child’s primary caretaker. This is the person that does the bulk of tasks such as bathing and grooming, planning and cooking meals, and teaching basic skills (reading, helping with homework, etc).
Historically, the courts would apply the “tender years” doctrine, which favored mother’s rights over father’s rights in custody decisions. They believed that the mother was almost always the primary caregiver and, therefore, the best option for the child. Modern custody laws tend to be more gender neutral and do not favor one parent over the other. Some states do award sole custody to unmarried mothers, unless paternity is established and the father is requesting custody rights.
Far too often, fathers will not request custody rights because they assume that the court will default to the mother. If you are a father and you want custody, shared or sole, and you believe it is in the child’s best interest, you should petition the court.
4. Who Decides Visitation Schedules?
Several people play a role in determining the child visitation schedule, but the court nearly always has the final say over both custody and visitation. The court prefers that the parents negotiate visitation schedules on their own, many states requiring mediation before the court will issue a custody order. They may also require you attend parenting classes.
Once primary custodial rights have been assigned, the custodial parent gets to decide what sort of visitation the other parent will have, as long as it complies with the court order. The voluntary visitation or parenting time schedule must be submitted to the court for approval; if the two parties cannot agree, the court will intervene and issue a schedule based on the best interests of the child.
5. Which Parent is Granted Custody If the Couple is Not Married and There is No Court Order?
The custody rights of unmarried parents vary from state to state. Some states award sole custody to the unmarried mother, as there is no legal presumption of paternity, unless the father establishes paternity and demands custody. Others have a registry (Putative Father Registry) that alerts fathers of any legal proceedings involving their children, such as adoption.
Asserting your paternity as an unmarried father may involve submitting a DNA test to the court, if your name is not noted on the child’s birth certificate. Once paternity is established, custody will be awarded based on the child’s best interests. Custody between unmarried parents can get complicated, and might require the assistance of a family law attorney.
6. Can I Bring My Child with Me When Moving Out of State?
Interstate child custody can be confusing, and there are serious consequences for failing to abide by the law. The majority of courts will not allow you to move the child out of state without the court’s permission. However, if you have never been married to the father and there is no court order regarding custody, you are free to move out of state and take the child with you. Of course, establishing paternity changes the circumstances.
Before moving, you should report to the court your changed circumstances and file a petition to modify your child custody arrangement. It is required that you show that the changes, and the move, are in the child’s best interests. Moving the child out of state without doing so could result in jail time, fines, and losing custody. It is imperative that you resolve all custody issues before leaving the state.
7. Can I Change My Child’s Last Name from the Father’s Surname to Mine?
Your custody arrangement does not determine your legal right to change your child’s last name. Even with sole custody, the court may not allow you to change the child’s last name if the child and the other parent have a frequent and loving relationship. A court order is required to do so. If you and your child’s other parent mutually agree to the change, a judge will typically approve your request.
Even if the other parent is uninvolved in the child’s life, if they object to the name change, you must show that the change is in the child’s best interest. An example of this is if you can prove that the current surname causes significant harm or embarrassment. Once the request has been approved, you will need to notify the Social Security Administration and state agencies in order for the child’s birth certificate and Social Security card to be updated.
8. Is it Possible to Change or Modify Child Custody Orders?
In short, yes. Some states impose a waiting period when custody cannot be modified, but you can typically modify your custody agreement if you can prove that your circumstances have significantly. You must also prove that the current order is no longer acting in the child’s best interest. An example of this is if there is evidence of abuse.
The court will typically approve of a modification if both parents can agree to a change in custody. If either parent objects to the proposed changes, the court will hold a hearing in order to determine what is best for the child. Depending on the exact circumstances, courts may award sole or shared custody.
9. What is Child Support, and What Does it Cover?
Child support is an amount of money paid to the custodial parent by the non-custodial parent. It is intended to benefit the child by covering food, shelter, and clothing; health and medical care; and educational expenses, as well as other daily expenses. Some states have guidelines that assist courts in determining fair support payments, while others award support on a case by case basis.
Even if both parties have agreed on an amount, the court must approve. Without a court order, it could be very difficult to enforce the support agreement if the need should ever arise. With the order, you can petition the court for help enforcing your rights.
10. Do I Need an Attorney for Help with a Child Custody Claim?
Child custody cases are often complicated, emotionally charged, and require knowledge about several aspects of family law. A knowledgeable and experienced child custody attorney can help you understand your rights and options, prepare your custody claim, and represent you in court. They might also be able to negotiate with the other parent, avoiding prolonged litigation. The attorney will prove to be invaluable in your custody case.