Child Custody Tips
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What is child custody and what are my rights as a parent?
Child custody and visitation, in general, is decided in a divorce proceeding by a judge having jurisdiction over the parties, i.e., in the county where the parents reside.
It is the determination made by that judge as to where the child or children will live and also what visitation, if any, will be granted to the parent that does not have custody, or care of the child or children. State law says that parents of any child born within a marriage have the joint legal right to guardianship for the care, custody and control of that child.
Each parent's rights are equal unless a determination is made by a court of law, which would indicate that the child might be in danger when in the care of one of the parents. Allegations of abuse and physical threat must be proven to eliminate parental rights. In most cases, the law and courts prefer for the children to have equal and ample access to both parents during and after a divorce has occurred.
Do grandparents have rights concerning child custody?
With the ever-increasing involvement of grandparents in childrens' lives, this has become a very viable question with respect to a divorce situation. As in all cases, the best interest of the child or children will be considered and taken into account when deciding child custody.
Typically, if either one or both of the parents are alive, custody will be awarded to them. There are certainly cases in which parents may be deemed unfit or perhaps have preceded the child in death and therefore, a court is required to look at alternatives for child custody.
Ordinarily, a judge will explore options of the child or children's blood relatives first before seeking other child custody avenues. This may provide the grandparent, if physically capable and financially able to care for the children, the opportunity to petition the court for custody.
Of course, the judge will consider age and health of the grandparents in making his/her decision. However, it does give the grandparent a great opportunity to make the case that living with them would be in the best interest of the child or children.
If my ex-spouse is not paying child support, do I have to allow visitation?
The simple answer to this question is “yes.”
The two issues of child support and visitation under custody laws are separate and are not to be considered together. Remember that in child custody situations, the best interest of the child is taken into account.
Most courts agree that regardless of the payment of support or lack thereof, it is usually always in the best interest of the child or children to see the non-custodial parent as frequently and liberally as possible. While this can be extremely frustrating to the custodial parent, who has the responsibility of providing for the child on a day-to-day basis, courts will usually always admonish the custodial parent to grant such visitation.
In fact, custodial parents that hinder visitation based upon the failure to pay support may face a change of custody petition because of the frustration of visitation. There are other remedies that a custodial parent may take against a non-paying non-residential parent but the withholding of visitation should not be used in that way.
Obviously not every case is exactly the same; should you feel that you have a unique situation, consult with a child custody lawyer about the matter to determine whether or not any other actions could be or should be taken
What factors are considered when determining child custody?
Child custody law in most states encourages liberal and frequent contact with both parents in a divorce situation. Usually the primary consideration for determining child custody is what is in the “best interest” of the child or children. This shifts the focus of the matter from the parents and what the parents may want.
One factor that a court may take into account is how willing each parent is to contribute and cooperate with this consideration. Should a parent attempt to undermine the other parent's role in the child's life, a judge may be less inclined to allow that parents to have residential custody, or the right to have the child or children for the majority of the time in their care.
Child custody is an important factor in any divorce or separation of a family and the “best interest” of the child or children is often on a case by case basis. The court will usually take into consideration the totality of the family situation if the parents cannot agree on this issue.
What is the difference between the parent who wins custody and the non-custodial parent?
The parent who wins custody of the child will be responsible for the every-day care and control of the minor child or children. Typically, the child or children will live with the custodial parent and this parent will be responsible for the day-to-day decisions made with regard to the child.
Child custody law is clear, however, that the non-custodial parent, unless proven unfit, is to have ample and frequent visitation with the child. Custody guidelines may vary from county to county, state to state, but in general, the court prefers that children enjoy liberal access to both parents.
It is important to remember that children are often the victim in a divorce situation and can experience feelings of guilt and a strong desire for their parents to be together again at best, but able to maintain a good relationship at least. Parents should work together to ensure this type of relationship with regard to the children to lessen the effects of divorce as much as possible.
Can an extramarital affair have an impact on custody?
Affairs can be a factor depending upon the circumstances of the case. Most of the time if the relationship was discrete and doesn't overtly or negatively impact the children, then it will be a non-issue.
It can become a negative factor, however, if the relationship somehow poses a harm or threat to the child or children, such as having harmful sexual overtones or something that puts the child or children in an embarrassing situation.
If there is a live-in partner involved with one of the parents, then the judge may take into consideration any effect or influence this person would have on the child/children and also the affect that this relationship would have with the non-custodial parent. As with most any other determining factor when considering child custody issues, the best interest of the child is the most important part of the court's decision making process.
I am the non-custodial parent, child custody having been granted to my ex-spouse during the divorce. How can I go about changing that arrangement so that our kids are with me?
You should first consider the reasons behind which you desire a change in child custody.
* Are there circumstances that have changed such that make it harmful for your children to stay with your ex-spouse?
* Has there been what is termed a “material change of circumstances” that would warrant a re-examination of the facts of the case?
* Or are you simply desirous of more time with your children?
There are many factors that a court can consider in determining a change of child custody within the custody laws of your state. However, the overall presiding factor that any court will look at is the best interest of the children.
If you feel that circumstances warrant a change of custody because of a potentially harmful situation to your children, you will be well-ahead to consult a reputable child custody attorney familiar with the child custody laws of your state.
You may be asked to provide psychological evaluations regarding the competency of each parent as well as a home study to determine fitness. The just may even decide to interview the children, depending upon their age. Most judges will do so in a very non-threatening way to make the child comfortable, but all of these things should be considered before filing any motion to change custody.
Are there forms to be filled out when applying for child custody?
Child custody forms can usually be obtained at your local county clerk's office if you are unrepresented by an attorney. Because the law can often be complex, consider carefully your option to be represented by a good, reputable child custody attorney.
If you feel that your rights have been violated, whether you're the custodial parent or non-custodial parent, be sure to first take into account what the judge or court will look at primarily, which is the “best interest” of the child or children. Your concerns may be viable and valid, yet without representation in court, they will not be sufficiently considered.
It may be worth the effort and money to hire an attorney to represent you in the matter. Your local bar association can refer you to a lawyer specializing in family law and child custody matters. There are also websites you can visit which can assist and direct or match you to a good child custody attorney in your area. Most offer free, fast and confidential services in providing names of qualified and reputable counsel.
