Child Custody

Child custody is one of the most contentious aspects of a divorce. While both parents want the best for the children, emotions run high and can lead to bad decisions. The courts get involved in custody agreements to ensure decisions are made in the best interests of children.

What is Child Custody?

Child custody is a legal term that outlines the relationship between a child and guardian. Custody must be assigned by or agreed upon by the courts in divorces and other situations.[1] For instance, if parents are deemed unfit, a court may grant custody to a grandparent or other close relative.

What Are the Different Types of Custody?

Custody of a child doesn’t look the same for every family, or even for every child within a family. Courts have the ability and authority to award custody based on the child’s best interests. There are several different forms this can take:[1]

  • Legal custody. This refers to having the legal right to make decisions about raising a child.
  • Physical custody. Physical custody refers to a child living with a parent.
  • Sole custody. Also known as exclusive custody, sole custody grants all parental rights and physical and legal custody to just one parent.
  • Joint custody. In this arrangement, both parents share custody of a child, typically equally. Joint custody is usually both physical and legal, but it may be one or the other in some circumstances.  
  • Temporary custody. A judge may assign custody temporarily as a divorce case proceeds and the party work on agreeing to a permanent custody arrangement.

In custody agreements involving more than one sibling, courts try to keep the children together. This is considered to be in the children’s best interests. However, there are situations in which it is better or necessary to split up the residences and custody of siblings.

What Are Visitation Rights?

If a court determines that one parent should have sole custody of a child, it usually grants visitation to the non-custodial parent. The parent generally has this right unless the court states otherwise. When a court grants reasonable visitation, it means the parents are free to determine a schedule.

The parent may also grant limited visitation at certain times or with supervision. This is fixed visitation, and the judge determines the times, and often the places, for meetings between the child and non-custodial parent. The court can also grant visitation rights to grandparents.

Visitation rights usually change over time. Changes, such as work, relocation, and children’s needs, often warrant adjustments to the schedule. Either parent can request the court review and modify a visitation rights order, but they must prove that circumstances have changed. This can be brought up at the same time as requests for changes to child support.

How is Custody Determined?

Child custody laws vary by state, but in all states, the courts must approve any custody agreements. When parents cannot agree, the court will determine custody. Even when parents agree on an arrangement, the court must approve it.

The main standard for the court in approving or agreeing to child custody is the best interests of the child. This includes many considerations:

  • The wishes of the child
  • The wishes of the parent
  • The child’s age
  • The history of the child’s relationship to each parent
  • The fitness and stability of each parent
  • Which parent has spent more time caring for the child
  • The work schedules of each parent
  • How willing each parent is to communicate with the other and facilitate a relationship with the child
  • The home in which the child was raised
  • Any history of abuse, violence, or substance abuse
  • Each parent’s ability to provide for the child

Defining the best interests of a child is nearly impossible because every situation is different. A judge must use all the available evidence to make a reasonable decision about custody. Judges tend to prioritize stability and a custodial parent’s willingness to maintain the child’s relationship with the other parent.

Without a doubt, it is in the best interest of a child for the parents to work together amicably to create a custody agreement that the judge can approve.

Can a Custody Agreement Change?

In most states, the law puts a major emphasis on stability for a child. This means it can be difficult to change a custody arrangement. As with visitation rights, either parent can petition for a change, but they must show a significant change in circumstances that necessitates a modification.

The parent also must show the court that making a change to the agreement is in the child’s best interests. The process for modifying custody arrangements varies depending on the state.

Do Mothers Get Preference in Custody?

At one time, courts did give preference to mothers in custody disputes, especially for younger children. This is no longer the case. Parents are given equal consideration. However, if everything is equal between two parents, the court will generally give custody of a young child to the mother. Most states currently have laws that forbid discriminating by gender in custody decisions.

What if a Parent Violates a Custody or Visitation Order?

Both custodial and non-custodial parents must abide by the terms of custody and visitation orders. If they do not, they may be found in contempt of court. If either parent continues to make minor violations, the judge may change the custody order.

That parent risks losing parental rights. Taking a child out of the state is a grave violation. Under the Uniform Child Custody Jurisdiction and Enforcement Act, the state can issue an emergency order. The offending parent may lose all rights and even face jail time.

Child custody can be amicable and simple, but it is often complicated and contentious. Courts must approve all agreements to make sure children are receiving proper care. Child custody lawyers are usually involved as well, advocating for one parent and the child’s best interests.

  1. Cornell Law School. Legal Information Institute. (n.d.). Child Custody.
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