Consider these custody decision factors
In deciding who will have custody, the courts consider various factors. The overriding consideration is always the child's best interests, although that can be hard to determine.
Often, the main factor is which parent has been the child's "primary caretaker" (more on this below). If the children are old enough, the courts will take their preference into account in making a custody decision.
Although the "best interest" standard does vary from state to state, some factors are common in the best interest analysis used by the individual states, including:
- Wishes of the child (if old enough to capably express a reasonable preference);
- Mental and physical health of the parents;
- Religion and/or cultural considerations;
- Need for continuation of stable home environment;
- Support and opportunity for interaction with members of extended family of either parent;
- Interaction and interrelationship with other members of household;
- Adjustment to school and community;
- Age and sex of child;
- Parental use of excessive discipline or emotional abuse; and
- Evidence of parental drug, alcohol or sex abuse.
Determine the "Primary Caretaker" of the child
In addition to the above factors, some states' family courts allow a preference for the parent who can demonstrate that he or she was a child's primary caretaker during the course of the marriage.
In custody cases, the "primary caretaker" factor became important as psychologists began to stress the importance of the bond between a child and his or her primary caretaker.
This emotional bond is said to be important to the child's successful passage through his or her developmental stages, and psychologists strongly encourage the continuation of the "primary caretaker"-child relationship after divorce, as being vital to the child's psychological stability.
When determining which parent has been the primary caretaker, courts focus on direct care-taking responsibilities, such as:
- Bathing, grooming, and dressing;
- Meal planning and preparation;
- Purchasing clothes and laundry responsibilities;
- Health care arrangements;
- Fostering participation in extracurricular activities; and
- Teaching of reading, writing, and math skills.
Depending on the state where the custody determination is being made, other factors may be considered as important when determining primary caretaker status. Even such things as exposure to second-hand smoke and volunteerism in the child's school have been considered in a primary caretaker analysis.
While, in the past, the primary caretaker preference seemed just another way to award custody to mothers, as more and more men share parenting responsibilities, this preference does not necessarily favor mothers.
When it is apparent that both parents have equally shared parenting responsibilities, courts once again will fall back on the "best interest" standard in determining custody.
Physical and legal custody
In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent.
"Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.
Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce.
Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.
Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s).
Courts usually prefer not to separate siblings, however, when issuing custody orders.
When the child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody.
An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents.
How child custody decisions are made
In any situation where child custody rights are at issue, a number of key questions are raised. If you are going through a divorce, you will want to know whether your child will live primarily with you, and if not, whether will you will be able to make important decisions as to how your child will be raised.
If you are a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility.
Answers to these questions are at the root of most custody situations, but for parents and others without significant experience with child custody and the legal system, a fundamental concern is: How are custody decisions made?
Following is a brief discussion in response to that question.
Divorce and child custody decisions
If you are a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitation issues are resolved in a divorce. In general, like all aspects of a divorce -- including property division, child support, financial division, and spousal support (alimony) -- child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court. More specifically, custody and visitation decisions are typically resolved in one of two main ways in a divorce:
- Parents reach an agreement on child custody and visitation, as a result of:
- Informal settlement negotiations (usually with the help of attorneys); or
- Out-of-court alternative dispute resolution proceedings like mediation or "collaborative law" (usually with the help of attorneys).
- Court makes a decision on child custody and visitation (usually a family court judge).
Unmarried parents and child custody decisions
When a child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody.
An unwed father often cannot win custody over a mother who is a good parent, but he can take steps to secure some form of custody and visitation rights.
For unmarried parents involved in a custody dispute, options for the custody decision are largely the same as those for divorcing couples -- child custody and visitation will be resolved either through agreement between the child's parents, or by a family court judge's decision.
But, unlike divorcing couples, unmarried parents will not need to resolve any potentially complicated (and contentious) divorce-related issues such as division of property and payment of spousal support, so the decision-making process is focused almost exclusively on child custody. For this reason, resolution of custody and visitation may be more simplified for unmarried parents.
If unmarried parents do not reach a child custody and visitation agreement out-of-court, the matter will go before a family court judge for resolution.
Especially when making child custody decisions involving unmarried parents, the family court's primary consideration will be to identify the child's "primary caretaker."
Non-parental child custody decisions
In some cases, people other than a child's parents may wish to obtain custody -- including relatives like grandparents, aunts, uncles, and close family friends. Some states label such a situation as "non-parental" or "third-party" custody. (Note: Other states refer to the third-party's goal in these situations as obtaining "guardianship" of the child, rather than custody.)
Whatever the label, most states have specific procedures that must be followed by people seeking non-parental custody. The process usually begins when the person seeking custody files a document called a "non-parental custody petition" (or similarly-titled petition) with the court, which sets out the person's relationship to the child, the status of the child's parents (living, dead, whereabouts unknown), and the reasons the person is seeking (and should be granted) custody.
Usually, a copy of this petition must also be delivered to the child's parents, if they are living and their whereabouts are known. To see examples of non-parental custody requirements and petitions in two states, click on the links below.
Child Support Basics
When married parents divorce or separate, or when only one of the unmarried parents of a child has custody, the court may order the "non-custodial" parent (the parent with whom the child does not live) to pay a certain portion of his or her income as child support.
This is not the only scenario in which child support might arise. Less frequently, when neither parent has custody, the court may order them to pay child support to a third party who cares for their child.
No matter what situation gives rise to the need for child support, it might help to think of the legal right to child support as being possessed by a child (which it technically is), for his or her proper care and upbringing, regardless of who actually receives child support payments.
The government's role in child support
Because in the United States nearly half of all marriages end in divorce and almost one-fourth of all children are born to unmarried parents, the regulation of child support is an important social issue. Whereas once the arrangement for and payment of child support was left to the parents, now state child support enforcement agencies are taking an aggressive role in seeking payments from non-custodial parents.
Frequently, the agency and court will work together to implement a child support withholding order, by which the child support amount is automatically taken from the payer's paycheck. If the child support payments become delinquent, the agency can implement other collection mechanisms, such as withholding support amounts from tax refunds, or seizing real estate or personal property.
Child Support Orders
Child support orders are issued by the family court, which bases the amount of the support on the state child support guidelines. These guidelines establish the amount of support that must be paid, based largely on the non-custodial parent's income and the number of children. The court will also take into account other relevant factors, such as the custodial parent's income and the needs of the children.
The court can deviate from the guidelines if there are significant reasons for doing so. The fact that the custodial parent has a high income does not itself justify deviation from the guidelines, because under the law children have the right to benefit from both parents' incomes.
Child support can be increased if there is a change in circumstances justifying the increase, such as an increase in the payer's income or the cost of living, a decrease in the custodial parent's income, or an increase in the child's needs. Similarly, the amount can be reduced if the circumstances justify the reduction.
Unmarried parents and child support
In cases involving unmarried mothers seeking child support, the first step may be to legally establish the father's "paternity" of the child. The father can do this voluntarily, but if he does not the mother may need to bring a lawsuit to establish paternity, which is usually done using genetic (DNA) testing. T
he court will order the "putative" (or alleged) father to submit to the testing if he does not agree to do so voluntarily. Once paternity is established, the court will issue a child support order in a manner similar to that in a divorce situation.
Interstate moves and child support
When the non-custodial parent moves to another state, the custodial parent may have to rely on the Revised Uniform Reciprocal Enforcement of Support Act to implement or ensure payment of child support. This Act provides the mechanisms by which a support order issued in one state can by enforced by the courts of another state.
Child support: getting a lawyer's help
If you are facing a potential child support issue or dispute, whether due to divorce or as a single parent, a family law lawyer can help by fairly and zealously representing either side in a child support proceeding. A family law lawyer will work to obtain the best possible result in the entry of a child support order, enforcement of an existing order, or in establishing or disproving paternity.
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