Child Custody FAQs

A child becomes legally independent at age 18.

Much of this depends upon the childs age. The older the child, the more influence he or she will be able to exert on the court. Although the court does have the final say the testimony of a child does place a significant weight on the judicial scales.

The unborn child is to be treated no differently than any living child.

Yes. It is recommended that periodic evaluations of the parenting plan be made. This is important because so many factors can be modified or altered over a short period following the divorce, such as change in employment, residence, or marital status.

In majority of the cases, the mother is granted physical custody. However, in some instances, the mother works nights or is heavily involved in educational pursuit. In cases of this sort, physical custody is often granted to the father.

Law requires that at least one parent is always legally responsible for the child. Any change in the status of custody rights must also always be made in concern with the judicial system.

It is possible. However, the court must be petitioned with the case being presented that the non-parent has a meaningful relationship with the child, and that the welfare of the child is best in the non-parents hands.

It depends on the length of time the child has resided in a state, any previous court proceedings, the residency of each parent, and so on.

There is no such thing called right time. The ultimate concern should be to maintain complete honesty and integrity when discussing the situation with the child. Children are often much smarter than they might lead one to believe.

This would put the child in a horrible situation. The worst thing a child must do is make a statement choosing the parent he or she would want to live with. In a lot of cases it must eventually be done, but if the child has not come forward, then a parent should probably not ask.

Not, surprisingly, it is women who are most in favour. Perhaps this is due to the recognition of the value of maternal instinct. For whatever reason, it has been the precedence set in the past and traditionally many judges find it difficult to change their ways. However, with the changing of socio-economic structure of contemporary society, fathers are beginning to have a more significant parenting role.

Again, not surprisingly, women are usually more wanting of custody than fathers, but the percentage of the fathers petitioning for custody is growing. This is very commonplace in a dual-income household.

Typically, the parents abide by the court-ordered arrangements for custody. However, it is not uncommon for the terms to change shortly thereafter the divorce due to change in lifestyles. (Remarrying, financial problems etc.)

What are the different types of custody?

Custody can be divided up into two parts, legal custody and physical custody. Legal custody means that the parent has the ability to make the major decisions about the child's health, education, safety and welfare. Physical custody refers to which parent the child lives with.

What are the factors that the court considers during a custody case?

The primary standard that the court uses to determine a custody case is always, "what is in the best interests of the child." The court has to determine many factors when it makes this decision.

Some of the factors that are considered when the court makes a custody determination are: (1) emotional and physical environment; (2) the personal safety of the child; (3) moral atmosphere of the household; (4) the mental and physical health of the parents; (5) the age of the children; (6) the age of the children; (7) preference of the child; (8) the prior behavior of the parents, including any history of abuse; (9) the ability of each parent to care for the child; (10) and the importance of religious upbringing within the family.

What type of custody arrangements can a court impose?

Once a court makes a custody determination, there are several possible custody arrangements that a court may impose. The court may impose: (1) sole physical or legal custody; (2) sole physical custody with joint legal custody; (3) joint custody. The term "joint" does not mean equal. Instead, "joint" means that the parties equally share the obligation to raise the child.

What is the most traditional custody arrangement that a court imposes?

The most traditional arrangement is for the parties to share joint legal custody, and the wife/spouse in most cases gets physical or residential custody. When one parent receives custody, the other parent receives visitation rights. This parent is also referred to as the non-custodial parent. The amount of visitation rights that a parent receives varies in each individual case. Visitation rights cases range from supervised visitation at the court house, to splitting parenting time equally.

Are the children's wishes considered by the court in a custody dispute?

In many cases, the court will consider the children's wishes if they believe that they are of an age to make an intelligent decision. The court will then interview the child in chambers. The court will then ask the child if they have a preference with regard to custody. This type of interview with the child is called an "in-camera interview." The goal of this type of interview is to assist the court to determine what the child's wishes are. In many cases, younger children are often influenced by the parent with whom they live with. Therefore, sometimes a young child's answers may be skewed. Alternatively, older children are much less influenced by their parents. A court always takes into consideration the age of the child when it determines how much weight to place on the outcome of the interview.

How can a person apply for custody of their child?

The first step that a person must take in a custody case is to file a complaint or a motion with the court. Once the custody application is received by the court, it will then be reviewed to determine if the case should be sent to custody mediation. Each county has their own custody mediation procedure. However, in almost every county, a custody case is first sent to mediation to try to work out a reasonable compromise. In addition, all parents are required to take a parental education class. These classes are run by the county, and there is only one session. If the custody mediation is unsuccessful, then the court will then order a hearing to determine the issues of custody and mediation.

What kind of assessments does the court make of the parents?

In many custody cases, one parent alleges that the other parent is an unfit parent, and they should not have custody. In this type of case, the court will order an evaluation of the parties. These types of evaluations are called a best interest investigation, a risk assessment, and/or a psychological evaluation.

A risk assessment is an evaluation that is provided by the court on request. A risk assessment is conducted by the County Probation Department. A risk assessment is usually requested when one parent is alleged to have an alcohol or drug problem. A risk assessment is also often requested when one parent has a history of sexual abuse. These types of cases are the nastiest.

For a risk assessment, a member of the Probation Department will go to the parties homes and determine if it is safe for the child to have visitation there. Many courts are just overwhelmed. In some counties, it can take many many months for a risk assessment to be completed. In other less backlogged counties, a risk assessment is completed in a timely fashion.

Another type of evaluation conducted by the courts is called a "best interest investigation." This type of investigation is also performed by the County Probation Department. There is no charge to the parties for the court to conduct this type of investigation. This type of investigation looks into the character and fitness of the parents, the economic condition of the family, and the financial abilities of the parties.

Finally, a court can also order a psychological evaluation of the parties. Whether a court grants an application for a psychological evaluation will depend on the individual judge. A psychological evaluation is costly, and the parties must also pay for this expense.

What happens if there is a custody dispute that involves different countries?

A custody dispute that involves different countries is becoming more common all of the time. I am sure that many people have heard of the case wherein a man marries a "hot looking" latina woman. Quite frequently, once marital problems arise, the latina women moves back to South America, Central America, the Dominican Republic, or to the Caribbean. Moreover, those arranged marriages from India often are a disaster. I have heard of many cases wherein the Indian wife leaves her husband and goes back to India. Quite often, the Indian wife also leaves with the child(ren).

The plain truth of the matter is that the world is getting smaller as each generation passes. In the near future, inter-country custody disputes will be just as common as interstate custody disputes.

What is child custody?

Divorce can be an earth-shattering event for children, creating feelings of loss, confusion, fear, anger, and resentment. Several recent psychological studies indicate that children can experience these effects for years, and it can affect how children, once grown, approach their own marriages and childrearing.

In addition to the psychological effects, divorce can have economic effects on children. Children often suffer a change after a divorce, sometimes financially, almost always emotionally.

Divorce is not common in the India. A quoted statistic is that "almost half of all marriages end in divorce." That leaves a lot of children enduring the effects of divorce.

Child custody laws throughout the India seek to provide some sense of order to the disruption of divorce and separation in efforts to smooth over this transition from a unified, nuclear family to a two-household family, with the spouses/parents living separate and apart.

One parent, generally termed the "custodial parent," will receive custody of the child(ren) from the court. The child(ren) will live for the most part with this custodial parent and visit with the "noncustodial parent" for short periods of time (hours or days). One exception to this rule is the "joint physical custody" arrangement.

Under joint physical custody, the time is divided more evenly or equitably (not always the same thing, so ask your attorney what may happen in your particular case). The child(ren) will spend significant amounts of time with each parent, often weeks at a time. Obviously, should the parents live in different states or towns - or sometimes even just school districts - a joint physical custody arrangement can be quite complicated for both the children and the parents.

What child custody arrangement is considered best?

Since children can suffer the effects of divorce fin different ways, so the best arrangement is the one that works for your family. Each family is unique in its needs and wants, and each parent should attempt to minimize the trauma on the child(ren) if it looks as though divorce is inevitable. Parents should agree to a custody arrangement that is carefully negotiated, thought out and planned.

We have all seen or heard of parents who use their child(ren) as leverage in the divorce proceedings. Do not do this! It is emotionally devastating for both the child(ren) and the parents and can often lead to bitterness and hatred. One need not compound the already emotionally charged atmosphere of the divorce or separation. Each parent must keep in mind that he or she will always have a relationship with their ex-spouse, so long as they want to remain as an active parent.

Does a custody dispute need to go to trial?

No. Only about 1 to 2% of all custody disputes end in trial. Obviously, it is best if a mediated arrangement can be reached between the parents. Studies indicate that those custody disputes that go through mediation and reach a mutually agreeable arrangement can do much to lessen the trauma suffered by the child(ren) and have a greater chance of long term success. Judges, for the most part, welcome a mediated arrangement. Judges realize that no one knows a family better than the parents, so they would prefer the parents to continue to make all the decisions for the family and the child(ren). When parents do end up going to trial over custody, often times the court�s decision is not necessarily favorable for one parent over the other. The judge will grant an order that attempts to please both sides. Rarely does one parent feel as though he or she is victorious.

Do I need a lawyer for a child custody dispute?

The law does not require a parent to have a lawyer for a child custody matter. Some parents, citing expense, consider forgoing a lawyer. Other parents believe that a lawyer only serves to escalate the ongoing hostilities that are present in such an emotional decision as a divorce or separation. And some just prefer to handle such personal arrangements as a divorce, separation and custody themselves.

Lawyers, however, do a better job of handling these types of matters. They are familiar with the law and the rules of the procedure. They may "know the judge," that is, they are familiar with the judge and his rulings and know the best approach to the situation at hand. They are also able to shield their client from his or her own anger in the proceedings. It is a rare person who can keep emotion out of an argument concerning children. Judges may interpret this anger or frustration as a negative attribute of the parent, which can been detrimental to any custody case. Lawyers often serve to prevent the escalation of hostilities both in and out of the courtroom. By eliminating or minimizing the hostility, negotiations between each parent are much more effective, which can lead to an agreement with out the help of the court.

What is the typical judicial attitude towards custody?

Not, surprisingly, it is women who are most in favor by percentage. Perhaps this is due to the recognition of the value of maternal instinct. For whatever reason, it has been the presidence set in the past and traditionally many judges find it difficult to change their ways. However, with the changing of socio-economic structure of contemporary society, fathers are beginning to have a more significant parenting role. More and more the court is granting fathers custodial rights or increased visitation rights. The decision of custody is not gender bias, so either parent has an equal chance of being the custodial parent as the other. Many fathers will argue otherwise, but state laws are put in place to protect their parenting rights.

What are parent�s attitudes towards custody?

Again, not surprisingly, women are usually more wanting of custody than fathers, but the percentage of the fathers petitioning for custody is growing dramatically. This is very commonplace in a dual-income household.

After divorce, how do majority of parents react to custody arrangements?

Typically, the parents abide by the court-ordered arrangements for custody. However, it is not uncommon for the terms to change shortly thereafter the divorce due to change in lifestyles (i.e., re-marrying, financial problems, ect.). Original custody arrangements/orders can be modified through the court, so long as a significant change in circumstance has occurred, and the parent or parents can substantiate that change.

How is child custody decided?

You may have heard of the "best interests of the child(ren)." This is the standard in all states in determining the custody of the child(ren). Each state has laws or "statutes" that govern child custody and each state lists several factors that the court will consider in deciding which custody arrangement will serve in "the best interests of the child(ren)". That said, these several factors often provide only minimal guidance for the judge. The "best interests of the child(ren)" standard gives a good deal of power to the judge and is typically the most influential factor for the judge in making a custody decisions.

Please keep in mind, that when the judge is forced to rule on your custody dispute, you are bringing in the element of surprise. There is never a guarantee (not even if your lawyer tells you) how the judge may rule on any specific custody case.

What is a typical child custody statute?

In awarding custody, the court considers the best interests of the child and the following factors: (1) the preference of the child; (2) the desire and ability of each parent to allow an open, loving, and frequent relationship between the child and the other parent; (3) the wishes of the parents; (4) the child�s adjustment to his or her home, school, and community; (5) the mental and physical health of the child and the parents; (6) the relationship between the child and the parents and any siblings; (7) any evidence of significant spouse or child abuse; (8) any coercion or duress in obtaining a custody agreement; (9) which parent(s) have provided primary care of the child; and (10) any evidence of or conviction for drug abuse. No preference is to be given on the basis of the parent�s sex.

Joint or sole custody may be awarded based on the best interests of the child and the following factors: (1) the preference of the child, if the child is of sufficient age and capacity; (2) the desire and ability of each parent to allow an open and loving frequent relationship between the child and the other parent; (3) the child�s health, safety, and welfare; (4) any history of child or spouse abuse by anyone seeking custody or who has had any care taking relationship with the child, including anyone dating the parent; (5) the nature and amount of contact with both parents, and (6) any continued use of alcohol or controlled substances. Marital misconduct may also be considered. Custody is awarded in the following order of preference: (1) to both parents jointly; (2) to either parent; (3) to the person in whose home the child has been living; or (4) to any other person deemed by the court suitable to provide adequate and proper care and guidance for the child. However, it is not presumed that joint custody is necessarily the preferred choice, unless there is an agreement between the parents regarding joint custody. No preference in awarding custody is to be given because of parent�s sex. The court may order a parent to give the other parent 30-days notice of any plans to change the residence of a child.

What is the most important factor in deciding child custody?

The most important factor considered by the judge in deciding child custody can vary from state to state, or even from judge to judge, but, given that the child custody proceeding and decision will try to lessen the disruption of the child�s life and that the best interests of the child standard generally seeks to allow the child to become a well-adjusted member of society, the parent-child relationship is often the most important factor.

Why is the parent-child relationship factor so important?

The judge will seek to maintain stability and continuity in the child(ren)�s life. To achieve this, the judge must decide, who can communicate with the child(ren). The judge has to consider which parent can meet the emotional and physical needs of the child through the divorce and post divorce. Keep in mind that, the child(ren) may have already become attached to one parent more than the other, and the judge will typically not want to attempt to hinder this relationship.

The court does believe that each child should have the right, and it is in his or her best interest to grow up with the parenting influence of both the mother and the father, so do not be mislead that by choosing one parent as the primary custodial parent does not automatically insinuate that the other parent is not as capable or as important to the child(ren) (of course this does not hold true for unique circumstances that involve, domestic abuse, alcoholism, and drug use).

Should a boy live with his father and a girl live with her mother?

As you can see from our example statute previous mentioned, judges do not decide custody on the basis of the child�s sex; that is, a boy does not automatically live with his father while a girl does not automatically live with her mother. What is best for the child(ren) is the utmost important standard, not the sex of the child.

Do young child(ren) need their mother more than their father?

In the past, judges recognized standard that was known as the "tender years" doctrine. Under this standard, a child of tender years" generally, those under the age of eight were automatically awarded to the mother. The only way to prevent this was to prove that the mother was unfit to raise the child(ren). The "best interests of the child" standard has eliminated the tender years doctrine. Mothers are no longer automatically awarded custody of young children, but some states still make use of the tender years doctrine, without calling it as such. They achieve this by taking into consideration the age and sex of the children when deciding child custody. We stated above that sex and age are not an automatic determinant of custody, but they can still be considered by the judge and can be a very persuasive factor.

What if I was more responsible for the child(ren) than my spouse?

If you looked after the children more than your spouse did, you are considered the "primary caregiver." The judge will look at which parent prepares meals for the child(ren), gets them ready for school or bed, helps with homework, schedules medical appointments, drives the child(ren) to activities, provides discipline for the children, etc. The judge will generally favor the primary caregiver when considering who to declare the custodial parent.

Judges generally feel that by awarding the child(ren) to the primary caregiver they are preserving the emotional and physical bonds that have developed between the parent and the child. The primary caregiver can continue to provide for the child(ren) without too much disruption, and the child(ren) will stand a better chance of getting through the emotional upheaval of the divorce or separation.

As a practical matter, the doctrine of the primary caregiver often results in favoring the mother over the father. In our society, it is still the mother who typically stays home with the children or assumes the bulk of the childcare. The majority of children end up in the care of the mother not because of a preference for mothers, but because of the way Western society is structured. Be prepared to demonstrate to the judge�s satisfaction that you are the primary caregiver if you are claiming such.

What if I am in better health than my spouse? How does that effect custody decisions?

If your health is only marginally better than your spouse�s, such as you exercise daily while he or she is on the couch, then a judge will likely ignore this. If, however, your health is significantly better than your spouse�s, who has a chronic or serious disease, then a judge may consider health in deciding custody.

This does not mean, however, that a disabled parent is automatically out of the running to become the custodial parent. The disability will be one of the factors considered by the judge when awarding custody. If the disabled parent can meet the child(ren)s needs and provide a good, stable, home environment for the child(ren), the disability may not be of any relevance.

If, on the other hand, one parent suffers from a mental disability that would make caring for the child difficult or next to impossible, of course this would be become a major factor. If the mental disability can be successfully treated by drugs or other methods and would not pose difficulty or danger when attending to the child, it may not be as relevant. Be aware that some judges in some states still have a prejudice against mental illness when deciding child custody and believe that any mental illness renders a parent unfit. Again, your lawyer will be able to advise you on this issue. If you are the parent with the mental disability, be prepared to demonstrate that your disability is being treated and/or poses no difficulty or danger when attending to the needs of your child(ren).

Some judges still are leery of awarding custody and in some cases have denied visitation to a parent who is HIV positive or has AIDS. This type of decision is more often based on ignorance and fear than on sound medical knowledge. It is unlikely that status as an HIV or AIDS patient would endanger the child in any way since HIV can only be contracted through an exchange of bodily fluids, not a likely scenario in most households. If the afflicted parent is capable of attending to the needs of the child, HIV or AIDS status should have no bearing on child custody.

My wife works outside the home, therefore spends little time with the child(ren). Should I be awarded custody?

This can be a Catch-22 situation for women: judges will expect women to work after getting a divorce since long-term alimony is rarely awarded these days. But if a woman works, she may be unable to spend a great deal or a sufficient amount of time with her child(ren). Some judges believe that a woman who works will always be a neglectful mother. The woman is penalized by the economics of being a single mother.

Judges often consider the amount of time available to spend with the child(ren) as a legitimate factor in deciding child custody. If the mother works long hours and rarely has time for the child(ren) while the father has a more flexible work schedule, due to the circumstances the father is likely to become the custodial parent.

The father is also more likely to be in a better-paying and more-flexible position at work since he more likely worked throughout the marriage. A formerly stay-at-home mother will probably be entering the work force at the low end of the economic spectrum after divorce, with fewer perks and less chance for flexibility in time management. Indeed, it is a fact that the father often remarries and, thus, his new wife can become a stepmother to care for the child(ren). This is a nightmare that most single mothers have and must face as a potential reality.

That said, judges generally do not consider the financial status of the father versus the financial status of the mother when deciding child custody. Child support awards are generally used to handle differences in income and provide for the children�s financial needs.

If, however, the mother lives in such poor financial conditions that the children�s health or welfare would suffer if placed with the mother, a judge may consider this in deciding child custody. Most judges would be hesitant to do so and would most probably use all other resources to resolve this financial dilemma. These cases are admittedly rare and will probably not be relevant to your particular case.

My husband smokes marijuana on a daily basis. Should he be barred from being granted custody?

If a parent is addicted to drugs, such as ganja, brown sugar, or even a prescription drug such as Oxycontin or Vicodin, he or she will almost surely be barred from custody. Judges consider this to be so serious that often this can be the sole factor in deciding custody. Abuse of alcohol is also considered to be extremely serious and may also cause a parent to lose rights to custody. If the parent is handling their addiction, through a 12-step program or similar procedure, this would be considered by the judge and would most likely deter the judge from automatically barring that parent.

Prior misuse of drugs or alcohol is unlikely to affect a child custody case. If you are the parent with the history of drug use, you should be prepared to demonstrate to the judge�s satisfaction that you have stopped the drug use and that it will not reoccur in the future.

In addition, if the new partner of a parent should be involved with drug or alcohol abuse, this too can affect the parent�s case for custody.

If you believe that your ex-spouse or his or her new partner is involved with drugs or alcohol abuse, you may be able to get a court order for testing.

Often one parent will falsely accuse the other parent of drug use or the abuse of alcohol. If the accusation is deemed to be untruthful, the judge will give serious consideration to granting custody to the falsely accused parent. The bottom line, judges do not like to play games and are not afraid to rule in favor of the falsely accused. False allegations are a severe problem in the family law court system, so they are often dealt with by using severe punishment.

My ex-wife�s boyfriend smokes cigarettes, and my child has asthma. Should I be awarded custody?

Cigarette, cigar, or pipe smoking can have extremely serious effects on a child�s health condition, especially if that child suffers from a respiratory disease or syndrome such as asthma. However, in the absence of direct proof that the smoking is harming the health of the child, smoking alone will not bar that parent from being awarded custody. Smoking will only be considered as a factor in the custody decision. The judge will most likely order the smoker not to smoke while the child is present, which will make this factor completely irrelevant.

My soon to be ex-husband is living with his girlfriend. Can I prevent him from having visitation?

At one time, this alone would have been enough to deny custody, and perhaps even visitation rights. Judges, in the past, were quick to condemn relationships out of wedlock. As the times have changed, so have the attitudes of the court. If the parent is discrete and does not flaunt a provocative lifestyle in front of the child(ren), it is unlikely that a judge would deny custody or visitation solely on the basis of such a relationship. Some judges do deny custody on this factor, believing that exposing a child to a relationship not supported by marriage will be detrimental to the child(ren).

If, however, the parent is involved in a series of affairs or becomes involved with "persons of ill repute," a judge will most definitely look harshly upon this.

If your custody and visitation order is already established, you should never prevent visitation without consulting a lawyer. Blocking visitation rights is like taking the law into your own hands without the authority. Visitation should never be used as a tool for punishment against the other parent. The court will not look highly upon this and it can carry with it severe legal repercussions against you.

If you believe that your child(ren) are in danger during visitation periods, call a lawyer immediately and he or she should act in a prompt fashion by filing a motion or petition with the court.

Should I be awarded custody, since my ex-husband spanks our child(ren)?

Corporal punishment, alone, will most likely not be enough to deny custody or visitation. However, you should be aware that judges and custody evaluations generally do not like or favor corporal punishment, of any sort.

My son wants to live with me. Should his wishes be honored and/or considered by the judge?

As you can see from our example statute above, the preference of the child(ren) is listed first among the factors to be considered. This does not, however, mean that it is the most important factor but, rather, is the "first among equals."

If a child is old enough, mature enough, and intelligent enough to make a decision rationally on this issue, and can communicate his or her decision and wishes effectively, the judge will listen closely to what the child has to say. The child should also have a convincing reason to substantiate his or her decision. In most states, children over the age of fourteen are considered to be mature enough to be heard, and the judge will take their wishes into account more than he or she would if the wishes of a child of, say, seven years of age.

Here we experience a return, somewhat, of the "tender years" doctrine, in that children under the age of seven are generally not considered to be wise or sophisticated enough to make such a decision. In addition, they may be too easily influenced by the wishes of one parent or another. Children over the age of seven but younger than fourteen will generally be heard by the court, and the judge will make the decision on a "case by case" basis; that is, the judge will not make a blanket rule to accept the wishes of all children but will decide on each child, given all the factors and evidence presented in the case regarding the age, maturity, and intelligence of the child.

Certain judges require a child to testify in court as to his or her wishes, while other judges will interview the child privately, in chambers or elsewhere.

Be aware that having a child express a preference, especially a strong preference, may affect the parent-child relationship of the parent who is not chosen. Children may not want to express a desire since it forces them to choose "who is the better or favorite parent."

I�ll take custody of our son, and my wife will take custody of our daughter. That�s fair, isn�t it?

A judge will not want to separate brothers and sisters, preferring instead to keep all siblings together. The bond between siblings should not be broken by a custody decision, especially when these bonds can be very important during the separation and divorce process. Siblings are often strong emotional props for each other throughout the turmoil. Of course there are unique circumstances they may exist, which would temp a judge to deviate from the norm. Those circumstances must be very convincing.

This situation is called "split custody" and still is quite rare. Usually split custody arises when it would be in the best interests of the child(ren).

For example:
When one child has an extremely strong preference for one parent over another and not all the children have this preference, or when the siblings just cannot tolerate each other in a way that is stronger than just normal sibling rivalry.

My ex-husband used to abuse me. What if I do not want him near the children?

If one spouse physically abuses the other, can that spouse be considered a good role model for the children? How can the violent spouse be a fit parent at all?

Domestic violence is an unfortunate fact of life for many children and can be especially devastating far beyond the effects of divorce itself. There is evidence that children who see domestic violence end up violent themselves, both as children and as adults. If an action can be considered a pebble dropped in a pool, causing ripples that fan out and affect other things and actions, domestic violence can be likened to a boulder dropped in the pool, causing waves that can destroy all opportunities of a normal life.

As you can see from our example statute above, spousal abuse is a significant factor in deciding custody. Some states automatically award the abused spouse custody. Often the abused spouse (usually the mother) will try to get sole custody and prevent the father from seeing the children. This can be conflicting of some statutes in certain states, which strive to maintain a relationship between the children and both parents.

If you are the victim of spousal abuse, do not hesitate to seek help. It is your goal to protect yourself and your children. There may be a community shelter or hot line specifically for victims of spousal abuse in your area. These shelters or hot lines are the best at being able to help you.

Does there have to be a custody agreement?

It is required by law, for at least one parent to always be legally responsible for the child(ren). Any change in the status of custody rights must also always be made in concern with the judicial system. It is very important to see that the court recognizes any changes you and your ex-spouse agree to make in the future. This is done by motioning the court for a modification of the existing custody or separation agreement. Too often parents neglect to have changes recognized by the court and find that legally the court cannot recognize verbal agreements between you and the other parent.

Can a non-parent obtain custody of my child(ren)?

It is possible. However, the court must be petitioned with a strong case that the non-parent has a meaningful relationship with the child, and that it is in the best interest for the child(ren) to be living with the non-parent.

Grandparents are the most likely non-parents to petition the court for custodial rights. Grandparents have the right to petition for custody as does anyone else. The difficulty in actually getting custody is proving that it is in the best interests for the child(ren) to be with them. Grandparents have many other rights, especially concerning visitation. If this issue is of concern, you should consider reading up on grandparent�s rights as soon as possible. Grandparent�s rights have become a very hot topic within the family law spectrum.

How is child custody jurisdiction established?

Recent laws have been passed concerning child-napping. If one parent disagrees with the court�s decision, he or she might attempt to take the child(ren) to another state and thus ( each state has different guidelines or principles ) re-open the issue of custodial rights. There are several elements which determine the proper state in which child custody is determined: length of time the child has resided in the state, any previous court proceedings regardless of respective state concerning child custody, the residency of each parent, and so on.

Can my child be used as a witness in court relative to our divorce proceedings?

If the child is deemed to be of mature age and able to give reliable and consistent testimony, then eligibility to testify with respect to grounds for divorce and custodial issues can be granted by the judge.

During the time of separation, should I ask my child with whom he or she would want to live?

Usually, if the child has not independently come forward with a stated preference, it is a strong indication that he or she does not wish to make that decision.

If you wish to do this, it is recommended to consult a family counselor before doing so. He or she may be able to shine some light on the appropriate method or approach to use.

What is joint physical custody?

Joint custody is a relatively new form of custody that has gradually gained favor in many states. The traditional form of custody, called "sole custody," is when the child(ren) live with one parent, who makes all the decisions regarding the child(ren �s welfare, and the child(ren) visit with the non-custodial parent. A common arrangement is Wednesday evening and every other weekend.

"Joint custody" can mean joint legal custody or joint physical custody. Joint legal custody, which is much more common than joint physical custody, means that both parents make decisions regarding the children�s health, education, welfare, etc. Joint physical custody means that the children spend a significant amount of time with each parent (multiple overnights in a row on a consistent basis). This does not necessarily mean that the time with the children is divided evenly between the parents.

An example arrangement of joint physical custody would be as follows: the children live with the father over the entire summer (April, May,June) and with the mother for the rest of the year.

Is joint legal custody a better solution?

Joint legal custody may have some advantages over sole legal custody. This arrangement encourages the children to remain involved with both parents, which will hopefully establish a healthy relationship with each parent. Joint legal custody may lessen the trauma of separation that children suffer from during and after divorce. Joint physical custody, while not the same, is at least an attempt to preserve the intact nuclear family that was present before the divorce.

Joint legal custody allows the non-custodial parent to have input on important decisions regarding the children. The goal is for a custodial parent to have a better relationship with the non-custodial parent which will enable each of them to rely on one another as the children grow up.

What is visitation and how does it work?

When one parent is granted primary custody of the child or children, that parent is termed the "custodial parent." The "noncustodial parent" is granted visitation rights. Typically, visitation is one or two days a week, and a few weekends, such as Wednesday evenings and every other weekend although all visitation schedules are unique for each family.

Through visitation, the state and the judge are attempting to provide a system whereby the parent can maintain a healthy relationship with his or her child(ren). It is believed that children will be happier, healthier, and become more well-rounded adults if they have interactions with both parents. Most states consider visitation to be a right of the child; some states consider visitation to be a right of the parent as well. When analyzing it each of these perspectives it is just as important for the non-custodial parent as it is for the child(ren).

How do my spouse and I devise a visitation schedule?

The vast majority of parents create a visitation arrangement through mediation and/or negotiations. The issues related to the visitation schedule rarely go to court for the judge to decide. Many states require "parenting plans," which lay out the details of custody and visitation. Many times a judge will prescribe "reasonable" visitation, or "liberal" visitation, without further definition or advice. It is then up to the parents to come up with a viable visitation schedule within the separation agreement and/or parenting plan.

Your visitation schedule should be in writing so that both you and your ex-spouse agree to it and understand the details. This will prevent misunderstandings, confusion, possible resentment, and likely, litigation in the future. It will also help the child(ren) to understand the schedule, so there may be a sense of order and stability in their lives.

Do all parents have the right to visitation?

Typically the spouse who does not have physical custody of the child has the legal right to visitation. These rights can be withheld if evidence can be brought forth proving that it is in the best interest of the child not to see the spouse (examples: excessive use of alcohol, physical or verbal abusiveness). The amount and schedule of visitation is stated in the final agreement and can vary according to each family�s situation, lifestyle and circumstance, so the amount of visitation can be quite substantial or minimal.

For example: It would be impossible for a father to have the children every Wednesday and every other weekend if he live 600 miles away from the parent.

Can a visitation schedule be modified at a later date?

Visitation schedules are often established as a test. Either parent does not know what the future will hold as far as how their parent -child relationship will grow. Typically visitation schedules do change and it is done with out the use of the court, but if need be the court will make a decision if a parent is being deprived of visitation rights. If the visitation schedule changes dramatically, this may include the custody arrangement as well, it is important to make the court aware of the changes. Then, the changes are documented in writing and are legally binding.

What should I do if my child does not want to see me?

This is a very difficult situation, especially when the child is very young. In all fairness, hopefully the custodial parent is not influencing the child. This, however, does occur quite often and can be difficult to detect or prove in court. It is the child�s choice to see or not see the estranged parent, so fighting this situation can be an up hill battle.

There is a relatively new epidemic known as "Parental Alienation Syndrome", which is the act of one parent influencing the child(ren) to dislike or disrespect the other parent. If you feel as though this is what is happening to your child(ren), it is suggested that you research this topic in hopes that it will connect you with the resources to help rectify your unfortunate situation.

How do I make the most out of the little time I have with my child(ren)?

Be sure to give the child(ren) as much of an explanation about the situation as possible, and be there to answer any questions. The typical estranged parent will try to make up a two-week period of time in one weekend. This is probably the best attitude to have, but do not involve it with overwhelming presents, because when children grow up they began to understand the power of money and how it is used to influence people. Even-though the presents are given with good intentions, sometimes just spending quality time and having good talks is the best gift of all.

How can I keep a close relationship from a distance?

A phone call at the appropriate time can be as meaningful as any visit. Also consider using e-mail to correspond. Most colleges and universities offer this to students, so if your child is away at school this can be something he or she looks forward to every week. Distance is the on obstacle between children and parents that is the toughest to overcome.

How can I get to know my child(ren) again?

Going through a divorce can really hurt relationships and sometimes rebuilding them can be a long drawn out process. Don�t expect it to happen over night, and try to do things on a consistent basis that will bring you closer. Try having your child bring a friend along on a weekend adventure, this allows the child to be more comfortable.

Remember: not only has your family been broken, but a sense of trust has been broken as well. As with any relationship, re-building trust can take time, so patience is a virtue.

When can the judge deny visitation rights?

As noted above, visitation will be denied when there is evidence of physical, sexual, or emotional abuse by the non-custodial parent. If the non-custodial parent is a child molester, judges will not hesitate to deny visitation and potentially relinquish all parental rights.

In some cases, visitation rights will be denied if the judge believes that the non-custodial parent intends to kidnap the child and disappear, either within the India or to some foreign country[Karishma Kapoor Case]. It is more likely, however, that the judge will order supervised visitation (see above) in this type of case, unless absolute proof of intentions to kidnap is evident.

My ex-wife is interfering with my visitation. What can I do?

If your ex-spouse is willfully interfering with the terms of the visitation agreement, you can try to get your ex-spouse held in contempt of court. You will need a court order.

You may also seek to have the visitation schedule changed or modified by the court if there is continuing interference. Judges try to avoid this, so be prepared to provide a good reason with proof for a modification.

Be aware, in extreme cases of interference with visitation, custody may be changed by the court.

I never get to visit my child(ren) Can I stop paying child support?

The answer to this is simply, "No." Visitation and child support are two separate and distinct issues. The custodial parent has a duty to allow the non-custodial parent visitation with the child(ren), and the non-custodial parent has the duty to pay child support. If there is interference in your visitation, you must seek to have the visitation enforced. There are legal repercussions if you stop paying child support just as there are legal repercussions for interfering with visitations.

What if my child chooses not to adhere to the visitation agreement?

You should encourage your child to visit with the non-custodial parent. Your obligation, as a parent, is to continue to support the visitation schedule, notwithstanding the wishes of the child. The object of visitation, as noted, is to allow a parent to maintain a healthy relationship with his or her child(ren). Parents do not have the legal right to stop visitation on their own volition.

If you believe that the child does not want to visit with the non-custodial because of abuse or similar reasons, you can and should report this and petition the judge for a modification. Even in this situation the custodial parent cannot legally stop visitation of his or her own volition.

What if my ex-husband�s parents want visitation?

This is an evolving area of the law. Grandparents can, and often do petition the judge for visitation rights, but this is no guarantee that they will be awarded. The Indian Supreme Court has ruled that in this situation the best interest of the child standard is not enough. If the grandparents have developed a strong relationship with the child, or the child actually lived with the grandparents prior to the divorce or separation, and isolation from the grandparents would be detrimental to the welfare of the child, the court may grant visitation rights.

My ex-wife is moving away with the children. Can I petition for custody?

Again, the answer to this question can vary from state to state. In some states, if the custodial parent cannot show to the satisfaction of the judge that the relocation is in the best interests of the child, the judge may consider changing custody. The change in custody may be determined to be less of a disruption than would be the change in location, school systems, friends, acquaintances, etc.

What if we cannot agree on our child custody arrangement?

The court will decide for you. You should try to work it out. Negotiation is always better than imposition. If you leave it up to the court to decide, you are including the element of surprise. You can never tell what a judge may decide and you may discover that it is neither what you, your spouse, or your child(ren) desire. No one understands your family better than you and/or your spouse, so to leave the decision(s) up to a judge is often a regrettable option.

Would we be able to specify a joint custody arrangement in our agreement?

Yes, you may put that in the agreement, if you feel that it is in the best interest of the children. Many courts favor joint legal custody. If you plan to have joint physical custody, you may have a little more difficulty proving to a judge that this is right for the child(ren). Joint physical custody is an arrangement where the child(ren) actually lives with both parents for a specified period of time during each year.

For example;
The child(ren) live with the father each odd month and with the mother each even month. This may seem like a well thought out and negotiated arrangement, but the judge will question whether or not it is a healthy living arrangement. What is great, and content for the parents, may not be best for the child(ren).

How would a typical clause for joint custody read?

A typical clause would read:

The parties agree that they shall have joint custody of the children. Joint custody herein means that the parties shall have equal input with regard to all major decisions affecting the health, education, welfare, and religious activities of their children, that all such decisions shall be jointly made by them, and that routine decisions that do not have more than a day to day effect, shall be made by the person who has physical custody of the child at the time the decision must be made. The parties shall jointly make as many routine decisions as is possible.

Can the interests of the children be included in the agreement?

Yes, but you have a greater likelihood of this clause being upheld or made "bulletproof" if you give this decision-making power to the child once he or she reaches the age of eighteen. The clause would read as follows:

The parties agree that the child(ren) shall be entitled to determine his or her own custody upon reaching the age of eighteen.

 

Published by Rudolph
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