Child custody rights refer to a set of rights given to a parent in divorces and legal separation. Child custody rights include legal custody, which includes making important legal decisions on behalf of their child, and physical custody.
Physical custody deals with which parent has the legal ability to determine the primary residence of the child. Child custody rights are determined by a judge using several factors, and are always determined according to the child’s best interests standards.
Because custody rights involve a child’s safety and wellbeing, child custody cases can be complicated. Additionally, state laws regarding the issue vary. Child custody cases require a good working knowledge of family law as well as state law. Below, we will discuss the most common questions related to child custody that Legalmatch receives.
1) How Do I File for Child Custody and Child Support?
In order to file for child custody you will need to first file a legal document asking the court to determine custody and appoint you as party with primary custody of the child. The actual name of the legal document you need to file depends on your local jurisdiction.
Additionally, the correct legal pleading that you need to file depends on the circumstances of your individual case. The following is a list of initial court documents that may initiate a lawsuit for child custody and child support:
- Divorce: If you are married to the person and you are seeking to be granted primary custody of a child you had while married to that person, you should first file an Original Petition for Divorce.
- In that petition you may also include a request for child custody and child support. In fact most states require that all child custody and child support matters be handled concurrently with the divorce;
- Suit Affecting Parent-Child Relationship or Legal Separation: If you are not married to the party in which you had children then you will file a Suit Affecting Parent Child Relationship or Legal Separation from that party to file for child custody and support;
- Paternity Action: If you are the biological father of a child, but did not appear on the birth certificate or you are the father of a child born during a marriage that is not your marriage, you will first need to determine you are the legal father of the child. In order to do so you will have to file a Paternity action before filing for legal custody and for child support; and/or
- Modification: If there was a previous Court order regarding the children that you are seeking to change the custody or child support amount ordered, you will need to file for a modification of that Court’s previous order.
- Generally, the filing party will need to show that there has been a material or significant change since the last order which is why the previous order is no longer appropriate.
As can be seen, what you need to file will depend on the specifics of your case, as well as your local jurisdictional laws.
2) If One Parent Has Full Custody Does the Other Need to Pay Child Support?
Child support payments are intended to help provide for the large financial responsibilities that come with having a child. It is a court ordered amount of money paid to the custodial parent by the non custodial parent. Some states have guidelines that they implement to determine a fair amount of support payments, while others award support based on each specific case.
Child support payments are not to benefit the receiving parent, but the child. As such, these payments generally provide for:
- Health and medical care; and
- Educational expenses.
When determining child support payment amounts, the court will generally consider the following factors:
- The needs of the child;
- The income of the custodial parent;
- The non-custodial parent’s ability to make payments; and
- The child’s standard of living prior to the divorce, if applicable.
Again, the basic idea regarding child support is that a parent has a legal responsibility to support their own biological or adopted child. If one parent has full custody of the child, then it is likely that the non custodial parent will be required to make child support payments in order to be equally responsible for their child.
3) Do I Need to Allow Visitation If I Have Full Custody?
It is important that you strictly follow the Court Order regarding allowing visitation. Therefore, if a Court has determined that you have full custody, then they will have also determined the possession and access for the other biological parent. Not following the Court order may result in you being held in contempt of court.
However, you are not required to allow visitation if the court did not demand it. You do not have to give visitation if the other parent is demanding it, especially if they are threatening to withhold child support. Instead, the other parent should file for visitation. However, if visitation was already denied, then the other parent needs to respect the court’s decision and cannot scare you into allowing visitation.
4) Does Full Custody Affect the Amount of Child Support?
Typically, the amount of one parent’s custody will not affect the amount of child support, so long as one parent has primary custody of the child. Therefore, unless your custody order is for split custody, where each parent has essentially 50% possession of the child, one parent will normally be ordered to pay a state guideline supported amount of child support.
Each state typically has a guideline child support amount that the party that does not have primary custody of the child, the noncustodial parent, is ordered to pay the party that primarily cares for the child, the custodial parent.
5) How Can I Get Full Custody of My Child?
First, consider whether it is possible to work with the child’s other parent to avoid further legal disputes through cooperation. It is important to always remember that the child’s best interests come first.
Therefore, if the other parent is involved with and loving towards the child, then it is unlikely that a court will deny them any sort of custody rights to their child. If this is not possible, then you may need to take legal action. Some general suggestions include:
- File a lawsuit with the court for a custody order if the other party is violating a prior custody agreement, or if abuse is an issue;
- Initiate or seek family mediation if some amount of cooperation is possible;
- Create an out of court parenting agreement with the other parent; and
- Understand that legal and physical custody are not the same, and understand how those differences may influence your ability to obtain full custody.
If you are trying to obtain full custody of your child, then you should absolutely avoid the following:
- Harassing, intimidating, or threatening the other parent;
- Seeking custody simply as leverage to gain an advantage or control over the other parent;
- Communicating with the other parent if they have an attorney and you do not, as you should try to keep communication between your respective attorneys; and
- Missing any legal proceedings, court hearings, or meetings regarding custody that require your presence.
Do not repeatedly call, demand, or show up at the other parent’s home. Do not threaten to withhold child support or alimony. Even if the other parent is “not playing fair,” it is important to follow the court order and do exactly as it says. In the end, the court will view your willingness to follow it, even when the other parent is violating it, shows that you are responsible and willing to work with the system.
6) Can I Get Child Support without a Child Custody Agreement?
Although you can get indirect child support payments from the other biological parent of the child, it is not advised to do so. Indirect payments from the other biological parent are typically not enforceable and payments are subject to the whim of that party. Therefore, it is important to get a court ordered child custody and support agreement in place to cover yourself if you and the other party are not agreeable to something in the future.
Typical child support agreements are registered with the Office of Attorney General in that state, and include an income withholding order. The party obligated to make child support payments, the obligor, will have the money withdrawn from their work paychecks in order to ensure timely support payments for the child. Thus, it is recommended that you always get formal child support payments setup with the State.
7) What Can I Do If the State Has Custody of My Child?
If your rights as a parent have been terminated, or are in the process of being terminated by the state, then it is important that you get into contact with an attorney immediately. Typically, you will only have a set amount of time to have the court that terminated your rights reconsider the termination. Once your rights as a parent have been permanently terminated then there is not much that you can do to regain custody of your child.
But if the removal was temporary, then you need to be ready to do whatever the court requires. It could mean finding employment, drug rehabilitation, and/or therapy. If you follow the court’s order then it increases the chance that your child will be returned to your custody. The legal system does not want to separate families, but instead want to ensure that children are in the best setting possible for their future.
8) What Should Be Included in a Child Custody Agreement?
A child custody agreement is a document that outlines the child custody guidelines. It is generally issued alongside a divorce or legal separation decree. Child custody agreements generally include the following:
- Which parent has been awarded primary custody rights;
- Which parent has been awarded legal custody rights (generally the same parent that has been granted physical custody rights);
- Whether custody will be split evenly between the parents;
- Whether any other parties can assume custody, such as grandparents;
- Visitation schedule for the non custodial parent; and
- Child support provisions.
What is typically included and any other stuff that they want to make sure is included, but can be skipped over.
9) How to Use the Best Interest Standard for My Child’s Name Change?
Custody arrangements do not determine your legal right to change your child’s last name. Thus, even if you have been awarded sole custody of your child, the court may not allow you to change the child’s last name if the child and other parent have an involved and loving relationship.
Additionally, if the other parent is not involved in the child’s life, they could still object to the name change. In such cases, you would need to prove that changing the child’s last name would be in the child’s best interests. Typically, you would not be able to change the child’s last name simply because you do not like it.
A court order is required to change a child’s last name. If you and the child’s other parent mutually agree to the change, then a court may approve your request. If your argument is that a name change is in the child’s best interests, then you will need to prove your case. An example of this would be if you are able to prove that the child’s current last name causes significant harm or embarrassment. Once the request has been court approved, you will need to notify the Social Security Administration and state agencies so the child’s birth certificate and Social Security card can be updated to reflect these changes.
10) Do I Need a Lawyer to File for Custody of My Child?
As can be seen, filing for child custody and obtaining child support payments generally require the assistance of a child custody lawyer. It is imperative that the child’s best interests are placed above else. As many situations involving custody and child support can lead to greater disputes with serious legal consequences, an attorney can help avoid these situations as much as possible while ensuring that the child’s rights are protected.
Additionally, an attorney can explain your state’s specific laws, as well as your rights and options. If you cannot afford an attorney, then there may be resources available to you in your community or through your State’s local bar association of attorneys.