When you are facing a child custody issue, you may have a lot of questions. Below, we discuss some of our readers' most common questions.
Courts make child custody decisions based on what is in the child’s best interest. Typically, a series of factors are weighed. While the factors vary from state-to-state, they may include:
Depending on the circumstances of your case, the court may award sole or shared custody.
While some states favor joint or shared custody, others prefer that one parent has primary custody of the child (while the other parent has visitation rights). If you need help understanding how your state handles child custody issues, contact a local family law attorney.
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If you are given sole custody (or full custody), you have both physical and legal custody of the child. In other words, your child will live with you and you are responsible for making important parenting decisions (such as decisions about health care, education, and religion). The non-custodial parent still must provide the child with financial support and may have visitation rights (depending on the circumstances).
Parents have shared custody (or joint custody) when they are both responsible for raising their child. Even if you have shared custody, you may not equally split physical custody with the other parent. Instead, custody will be split in a way that serves the child’s best interest. For example, one parent may have physical custody over school holidays and breaks, while the other parent maintains physical custody for the bulk of the school year.
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In the past, many states applied the “tender years doctrine,” which favored mothers over fathers in custody decisions. However, modern custody laws are gender neutral—and do not favor one parent over the other.
However, some states do award sole custody to an unmarried mother—unless paternity is established and the father requests custody rights. States have varying custody rules. If you have questions about your rights as an unmarried mother or father, contact a local child custody lawyer.
Too frequently, fathers do not request custody rights because they assume the mother will get sole custody of the child. This is an outdated belief. If you want shared or sole custody of your child, you should consider petitioning the court—regardless of your gender.
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Courts prefer parents to negotiate visitation schedules on their own. In fact, many states require mediation before the court will issue a custody order. (You may also have to attend parenting classes.) Typically, your voluntary visitation or parenting time schedule must be submitted to the court for approval. However, if you cannot agree on a visitation, the court will issue a schedule (typically based on the best interests of the child).
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If parents are unmarried, their custody rights will vary from state-to-state. In some states, an unmarried mother is awarded sole legal and physical custody unless the father asserts paternity and demands custody. Other states have a “putative father registry” that notify fathers of legal proceedings involving their child (such as adoption).
If you are an unmarried father, you have the right to assert your paternity, If your name was not on the child’s birth certificate, this may involve submitting a DNA test to the court. Once your paternity is legally established, custody will be awarded based on the child’s best interests.
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Most custody orders do not allow a child to move out-of-state without the court’s permission. Before you move, you should advise the court of your changed circumstances and file a petition to modify your child custody arrangement. You must show that the changes in child custody and the move are in the child’s best interest.
If you move your child out-of-state without the court’s approval, you run a serious risk of losing custody and facing jail time and fines. It is very important that you resolve all custody issues before you leave the state.
You cannot legally change a child’s name without a court order. Sometimes, parents will mutually agree to change a child’s last name. If your child’s other parent does not object to a name change, the judge typically will approve your request.
However, if the other parent objects to the name change (even if he or she is uninvolved in the child’s life), you must show that a name change is in the child’s best interest. For example, a name change may be approved if you can show your child’s current surname causes significant harm or embarrassment.
If the court approves your child’s name change, you must still notify the Social Security Administration and state agencies. Otherwise, your child’s name on his or her birth certificate and Social Security card will not be updated.
Courts recognize that child’s needs and best interests may change over time. While some states impose a waiting period (when custody cannot be modified), you typically can change your custody agreement if you can prove that circumstances have significantly changed (and the current order is no longer in the child’s best interest). For example, custody may be changed if there is evidence of abuse or if the custodial parent is no longer able to adequately care for the child.
If you and your child’s other parent can agree to a change in child custody, the court will typically approve your new agreement. However, if the other parent objects to your proposed changes, the court will hold a hearing and determine what is in the child’s best interest. (Depending on the new circumstances, the court may award sole or shared custody.)
Child support is paid to a custodial parent to help cover a child’s daily expenses (such as food, lodging, and clothing). Some states have child support guidelines that help courts calculate fair and appropriate support payments, while other states award financial support on a case-by-case basis. (You also may be able to negotiate child support payments through mediation or alternative dispute resolution.)
Even if you and the other parent agree on the amount of child support that is needed, you should still seek the court’s approval. Without a court order, it can be very difficult to enforce your child support agreement. (When you have a child support order, you can petition the court for help enforcing your rights.)
Child custody cases can quickly become complicated and contentious. Most parents benefit from the help of a skilled child custody or family law attorney. A lawyer can help you understand your rights, prepare your custody claim, and may be able to negotiate with the other parent (avoiding prolonged litigation). You may find that the cost of hiring a lawyer is worthwhile.
Last Modified: 07-13-2017 11:36 PM PDTLaw Library Disclaimer
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