Child Custody

Q:  What factors does the Court consider when deciding who gets custody of the child(ren)?

A:  Almost all Courts universally apply a standard that prioritizes the "best interests of the child" when deciding custody issues. What the best interests of a child are in a given situation depend on several factors, including:

  • the child's age, gender, and mental and physical health
  • the parent's mental and physical health
  • the parent's lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
  • the emotional bond between parent and child, as well as the parent's ability to give the child guidance
  • the parent's ability to provide the child with food, shelter, clothing, and medical care
  • the child's established living pattern (school, home, community, religious institution)
  • the quality of the child's education in the current situation
  • the impact on the child of changing the status quo
  • the child's preference, if the child is above a certain age (usually about 12)
 
If none of these factors clearly favor one parent over the other, Courts tend to focus on which parent is likely to provide the child(ren) with a stable environment, and which parent will better foster the child's relationship with the other parent. With younger children, this often means awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to provide continuity in education, neighborhood life, religious institutions, and peer relationships.
 
 

Q:  What are the different types of child custody?

A:  There are two types of child custody:

Legal custody – one or both parents makes all decisions, including religious affiliation, education, and medical care regarding the child’s upbringing.

Physical custody – one parent provides a physical home for the child the majority of the time.

If both legal and physical custody are awarded to one parent, that parent has sole custody. In cases where both parents share a combination of physical and legal custody, they are said to have joint custody. Both parents make major decisions about the child(ren) together. The smaller day-to-day decisions in joint custody are typically made by the parent who is physically caring for the child at the time.

   
Q:  How does joint custody work?

A:  In most cases, the Court will grant the parents joint custody. This means the parental rights of both the mother and father are still intact. One parent will be assigned as the primary custodian, and the other parent will be the parent with visitation rights. In this type of arrangement, both mother and father remain involved in all decisions for raising their child(ren).  Each parent has input on issues concerning health, education, religion, and other activities. The child(ren) share time with each parent – sometimes equally, and other times with a custom arrangement that is crafted by the parties or ordered by the Court.
 

Q:  What are visitation rights, and what are the different types of visitation?

A:  Visitation rights entitle non-custodial parents (parents who do not have primary custody) to spend time with their child(ren). Typically, the parents jointly determine visitation schedules, although in cases where hostility exists between parents, a Court might order fixed visitation (predetermined schedules, such as every weekend). In cases where a parent has a history of violence or substance dependency, a Court might order supervised visitation, which requires a third person to be present during all of the non-custodial parent’s visits with the child(ren).
 

Q:  How are child custody decisions determined when the parents are unmarried?

A:  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 an agreement between the child(ren)'s parents, or by a family court judge's decision. But, unlike divorcing couples, unmarried parents generally don't need to resolve any divorce-related issues such as property division and payment of spousal support. The decision-making process is focused almost exclusively on child custody and child support. For this reason, resolving custody and visitation issues is usually more straightforward for unmarried parents.

If unmarried parents do not reach a child custody and visitation agreement out-of-Court, the matter goes before a family Court judge for resolution.

 

Q:  Can a non-parent be awarded child custody?

A:  In some cases, people other than a child's parents want to obtain custody. When relatives like grandparents, aunts, uncles, and close family friends gain custody of the child(ren), it's known as "non-parental" or "third-party" custody. Another avenue for obtaining custody in these situations is obtaining "guardianship" of the child, rather than custody.

There are specific procedures that must be followed when seeking non-parental custody. The person trying to obtain custody has to file a "non-parental custody petition" (or similarly-titled petition) with the Court. This establishes the person's relationship to the child, the status of the child's parents (living, dead, or whereabouts unknown), and the reasons the person is seeking and should be granted custody. A copy of this petition must also be delivered to the child(ren)'s parents if they are living and their whereabouts are known.