Types of Child Custody

Child custody is determined based on state law. Child custody is generally broken down to two types:

• Legal custody – Legal custody is the right for a parent to make important decisions about a child, such as where the child will go to school, which religion the child will be brought up in and what type of medical care the child will receive.
• Physical custody – Physical custody refers to which parent the child will primarily live with.

Each form of custody may be considered “joint,” in which the parties share the custody or “sole” or “primary,” depending on the language the state uses. In the case of joint legal custody, both parents have the right to make important decisions about their children. The child custody agreement may state which parent has veto decision-making authority if the parents cannot reach an agreement. Joint physical custody means that the child will spend substantial time with both parents.

If “sole” or “primary” custody is awarded, the other parent will usually be granted visitation, which may be based on a county visitation schedule, an agreement between the parents or a judge’s orders after determining what is in the child’s best interests.

Many states have adopted more family-friendly terms and an attitude of including both parents in a more comprehensive manner. Some terms that you may hear include:

• Parenting responsibilities – This term refers to the parents’ duties to care for the child, the parents’ responsibility to provide food, shelter and other needs for the child and the legal responsibilities that parents have when their child is in their care. This term may be used in place of “legal custody” language.
• Parenting time – Parenting time refers to the amount of time that the child spends with each parent. This term may be used to replace the “physical custody” language.
• Primary residential parent – This term refers to the parent with whom the child will primarily live. Some states require that even if there is a joint custody arrangement that there still be a listed primary residential parent. This is the default parenting situation and may affect benefits to which the child or parent is entitled, such as tax benefits or Social Security disability benefits.
• Parenting plan – Some states require parents to enter into a parenting plan that describes when the child will spend time with each parent, how holidays will affect the child, how the child will be raised and other important information. If the parents are not able to reach their own decision, the judge may order the parenting plan.

Reaching an Agreement Regarding Child Custody

The parents may be able to reach an agreement regarding child custody without the intervention of the court. They may have an informal agreement and share responsibilities related to the child. However, this type of agreement will generally not have any legal authority behind it, so if one of the parties does not uphold his or her portion of the agreement, there may be little that the parent can do to enforce the agreement.

The parties can make a formal agreement regarding child custody that can be enforced in court. The parties may be able to create their own parenting plan by discussing various aspects and including the necessary information in the agreement that is required under state law.

Alternatively, the parents may be able to work with lawyers in a collaborative law arrangement in which the parties and their lawyers all have the target of reaching a settlement outside of court. Another option is mediation. This involves hiring a neutral third party who will help the parents evaluate what is best for the children, consider their schedules and think about what really matters in the child custody agreement.

Generally, the parents will either individually or jointly petition the court to enter their agreement into a court order. Typically, the judge will respect the ability of the parties to enter into an agreement of their own making and will approve it unless it violates state law or will not protect the best interests of the child.

Differences in Cases Involving Married and Unmarried Parents

Most states currently have laws that explicitly state that there is not a preference for either the mother or the father to have primary custody. Historically, mothers were more often granted custody of the children because they were usually the primary care providers. Today, state law may dictate that a judge should not consider the gender of the parents when making a custody decision. Other states have a presumption that joint custody is best for children unless there is evidence that this will not be in the child’s best interests.

However, there are differences regarding custody when the parents are not married. Most states have laws that find that the mother has custody of the child by default. In order for the father to have rights to the child, he may first have to establish paternity. Paternity can be established in a variety of ways, including:

• Signing the birth certificate
• Signing an acknowledgement of paternity
• Signing an informal paternity statement
• Having genetic testing performed

The ways to legally establish paternity vary by state, so be sure to consult with a family lawyer licensed in your state to determine how to legally establish paternity. Once paternity is established, then the court can proceed to make decisions regarding the child, such as for child support or child custody.

In contrast, fathers who are married to the mother have the same rights to the child as the mother. Until there is a legal custody agreement to the contrary, both parents will have an equal right to make decisions and spend time with their children.

Presumed Fathers

In paternity cases, there may be a father who is recognized under the law to be the legal father of the child, based on the conduct of the father and the circumstances involved in the case. This person may be called the “presumed father” and may have the legal right to custody and the legal obligation of child support, even if he is not technically the biological father of the child.

Some ways in which a person may be found to be a presumed father (according to state law) include the following:

• The man was married to the child’s mother when the child was born
• The man was with the child’s mother before the birth and married her after the birth of the child
• The man attempted to marry the child’s mother even if the marriage was not completed in a legally valid manner
• The man openly represented the child as his own and welcomed the child into his home

If presumed father laws establish paternity, the presumed father is legally obligated to support the child. If the couple later splits up, the presumed father will have standing to request child custody or visitation rights.

If a man knows that he is not the father of the child and wants to challenge this “presumed father” status, he often has a limited amount of time to make this challenge. Public policy supports the concept that a child is better served by having a man help care and support for him rather than the mother having to rely on welfare to help support the child.

The presumed father will need to present evidence regarding the presumed father status, such as showing that the father was not married to the mother at the time of birth. Until a father in this situation legally challenges the presumption, he has the duties imposed by law.

In some states, the presumption cannot be challenged and the presumed father will not be able to abdicate his responsibility even if the child is not biologically his and this can be proven.

Petitioning the Court for Child Custody

In order to obtain a legal custody agreement, one or both parents must petition the court for this relief. This is usually completed by preparing a written complaint or petition asking for divorce, legal separation, child custody or paternity.

State law and civil procedure will dictate the form of this legal petition, what must be included in it, how it must be served on the other parent and how long the other parent has to respond to the petition. The court will usually schedule a hearing. If the parents agree about custody, the judge may review this information with them and ensure that they are both in agreement before incorporating this agreement into a court order.

If the parties do not agree, the hearing will allow the parents to testify about their positions, present evidence and have other witnesses testify. The state may require mandatory mediation or negotiations before the hearing date to try to resolve the situation without judicial involvement, depending on state law and the circumstances surrounding the case.

Child Custody Best Interest Factors

When a court determines child custody, it considers what is in the “best interest” of the child. Many states have factors that help judges determine what is best for the child.

Some of these factors may include:

• Age of the child – Some judges may believe that babies and young children should be with their mother according to the “tender years” doctrine, which has largely been abandoned by courts.
• The living situation of each parent – The court will consider the living situation of each parent and how this will affect the child. The court will also consider the distance between your home and the other parent’s home. When the parents live near each other, the court may be more likely to award joint custody or a time-sharing plan that allows both parents to have significant time with their children.
• School and community – The court will also consider the proximity to the child’s school and extracurricular activities. It will want to maintain as much stability as possible.
• Health of the parents – The courts might consider the physical and mental health of the parents. However, if a parent is disabled but still able to parent the child, the court should not use this against the disabled parent.
• Special needs – The court can also consider whether the child has any special needs and how each parent tends to these needs.
• Religion – The court may consider which religion the child has grown up in and which religion the parent wants to raise the child in.
• The child’s preferences – If the child is old enough and mature enough to express his or her own wishes, the court will consider them.
• Relationship with the child – The court will consider the child’s relationship with each parent, including who has been more involved in the child’s life and who has been the primary caregiver.
• Willingness to support the parental relationship – The court will also consider the willingness of each parent to support the other parent’s relationship with the children. It will consider the history of cooperation or lack therefor between the parents. The court will be more likely to consider joint custody in situations in which the parents have a history of cooperation. The more cooperative parent may also receive a better position in the custody arrangement due to this history.
• History of abuse or neglect – The court will consider any record of abuse of the other parent, the child or another member of the household. It will also consider whether there is any history of neglecting the child.
• Parenting ability – The court will focus on whether each parent has demonstrated an ability to properly care for the child, provide loving support, guide the child and provide for his or her basic needs.
• Drug or alcohol abuse – The court will consider any recent history of drug or alcohol abuse and its possible impact on the child.
• Stability and consistency – The court will want to remain the status quo as much is possible. If the child is well-adjusted to his or her current home, school and community, the court may be reluctant to change this routine in the child’s life.
• Siblings – If the child has other siblings in one or both homes, the court will consider the impact of any child custody decision on the child’s relationship with his or her siblings.
• Extended family – The court will also consider the relationship and role of any extended family in the child’s life and how a child custody determination would impact them.

Supervised Visitation

If there is a history of domestic violence or the parent may present a danger to the child, the court may order that the visit be supervised. This would mean that someone else would have to be present during the visitation, such as the other parent, a family member or a neutral professional supervisor.

Custody from Third Parties

In some situations, the person wanting custody is not the child’s parent. Most states have a presumption that the child’s interests are best served if they are with one or both biological parents. However, if the parents are not present in their child’s lives, are incarcerated, passed away or otherwise are not fit, another person may be awarded custody.

Grandparents and other extended family members may be allowed visitation, but state law will determine whether they have any rights or not. For example, some states only allow grandparent visitation in cases in which the grandparent’s child has died and there was an existing relationship with the grandchild.

Effect of Child Support on Child Custody

Family courts generally treat child support and custody or visitation as separate issues. Therefore, if a parent fails to pay child support, the other parent generally cannot withhold visitation. Child support is intended to provide financial support for a child who needs it, but it is not treated as an access fee. However, when the court makes decisions regarding child custody, it may consider the parents’ ability to provide for the child and history of support.

Child Custody Modifications

It is important that both parents understand that a child custody order is a legal court order. If either parent fails to follow it, the other parent can seek redress. He or she may be able to get the court to award attorney fees, change custody arrangements, imprison the disobeying parent for contempt of court or take other adverse action against the parent. If a parent wishes to change the custody or visitation arrangement, he or she must seek modification of the existing court order.

Some states allow parents to wait a certain period of time before the court will be required to hear the case. Others may hear a request to modify child custody after a short time when the court order was last in place, but the parent may have a higher burden to meet. For example, the parent may have to show that there was a “material change in circumstances,” which is a major change that happened in the child’s life since the last hearing that justifies a change in the custody or visitation agreement.

If the reason for the requested change is due to domestic violence, the parent may seek a change in child custody through the modification process or possibly through seeking an emergency court order or an order of protection. An order of protection may order the abusing parent not to be around the other parent and not make contact with the parent. It can also make temporary visitation orders.