Child custody refers to the legal control and care of a minor child. A custody battle arises in a divorce or separation of a child’s parents. Additionally, custody cases may arise involving unmarried parents, death, foster care, or adoption.
What Is Child Custody?
There are two types of custody: legal custody and physical custody. Custody of a child can be joint, or shared between two people, or sole, with only a single person having legal control of the child’s rights.
Legal custody refers to the ability of the person to make all major legal decisions for the child (e.g., health care and education). Physical custody refers to the actual care and control of the child (e.g., with whom the child lives).
Family courts determine child custody arrangements based on the “best interest of the child” standard. The standard is broad, and a family court judge has wide discretion in his or her determination. Factors looked at include: the health and fitness of the parents, employment, finances, the child’s interaction with the parents, the child’s interaction with other siblings, and the child’s adjustment to home and school life. Judges can look at any circumstances they deem relevant for the best interests of the child in making their custody decision.
Many states have a presumption that both parents should share joint legal custody. This is based on the belief that if both parents equally contributed to making the child, that both should be equally responsible for making decisions for them. Thus, joint custody is usually favored unless it is not in the best interest of the child, such as in cases of domestic violence or where the parents cannot cooperate or communicate effectively.
A few states, however, will only award joint legal custody if both parents agree to it. If you are in one of these states and cannot agree, then the family court will decide which parent will have legal custody. In these situations, sole custody of a child is usually given to the parent who, up to this point, had the most control over their day-to-day decision-making (e.g., doctor appointments, school arrangements, and meals).
There can be joint or sole physical custody. Most states believe that it is best if a child has considerable access to both parents. Physical joint custody might not be a 50/50 split with each parent, however. Usually, one parent will have “primary physical custody,” in which that parent provides the official residence for the child, while the other parent has visitation rights.
Visitation rights, or parenting time, are determined by many factors. If both parents cannot agree on a parenting schedule, then the family court judge will make the schedule. The family court will look at how close the parents live to each other, the parents’ ability to cooperate and follow the order, and the child’s school schedule and social commitments.
Popular schedules include the “4-3/3-4 schedule” in which the child is with “parent A” for four days, “parent B” for three days, and in reverse order the following week. Other schedules include the noncustodial parent having visitation on most weekends and summer vacations.
As for holidays, sometimes parents decide to alternate years or rotate the major holidays. If they cannot agree, a judge will decide by court order.
However, child custody arrangements occur in many ways, especially if people who co-parent effectively decide to follow a parenting plan.
Sole legal custody might be ordered if one parent decides to end their custody rights, has a history of domestic violence, is imprisoned, or is found to be “unfit.” An unfit parent is one who has exposed the child to such abuse or neglect that the child’s well-being is in danger if in their care. With sole custody, a parent may still be granted visitation, even if the court requires supervision over the visits.
The U.S. Constitution holds that every parent has a right to raise and educate his or her children. As such, the termination of parental rights cannot happen without a trial.
Many states now mandate that parties in a custody battle must first try mediation before going to trial. As family lawyers are costly, mediation allows the parties to try to determine their custody arrangements without having to get a court order, saving both time and money.
Mediation is completely confidential and has a third-party mediator conducting the process. They are neutral and do not make judgments or legal advice on the situation. Their role is only to facilitate the mediation and give each parent a chance to talk to decide between themselves. If no custody agreement is made in mediation, the case will proceed to court. If the parties do agree on a decision, the plan will be drawn up as an order and signed by the court, making it legally binding on the parties.
Can My Child Decide Custody?
A common question is if a child can decide custody. Generally, a court will not hear from a child until a certain age, usually around 12 years old, depending on the state. Overall, the family law judge will evaluate if the child is of a suitable age, level of intelligence, and maturity to speak. If the judge allows a child to testify, they most likely will talk to them in the judge’s chambers without either parent present. It must be remembered, however, even in cases where a child testifies, a child’s preference is only one of many factors a court looks at in deciding custody arrangements.
Sometimes, a family law judge will appoint a guardian ad litem, or GAL, in a child custody case to represent their best interests. Sometimes, the GAL helps articulate the child’s preference or makes a recommendation to the family court after private interviews are conducted with them.
Child Support Order
Both parents have a legal responsibility to support their children financially. For child support, the noncustodial parent will pay child support to the custodial parent.
The amount is determined by the Child Support Guidelines of the state. Whereas states have different ways to calculate child support, all of them focus on income, needs, and the ability to pay. If you have questions regarding what your support court order may be, it is best to seek legal advice from a family law lawyer in your state.
Independent From Visitation Right
A noncustodial parent’s failure to pay child support cannot prevent their access to visitation with their child. Thus, a parent cannot refuse visitation if the other parent is late with child support. This is because it is believed that it would be against the best interests of the child to suddenly cut off a parent’s custody rights.
Modification of Custody or Child Support
Child custody and award orders can always be changed or modified. A modification will only be considered when there is a “substantial change in circumstances.” A family court judge will look at the original factors for determining the “best interest of the child,” plus any change in circumstances. Significant changes may include: fitness of the parents, employment, relocation, domestic violence, or changes in the major needs of the child (e.g., the child has developed a disability or medical emergency).
Child support payments will not end until the child reaches the “age of emancipation.” This age may differ in the child custody jurisdiction but is usually around 18 or 19. Some states allow for flexibility if the child is still in high school. For college-aged children, courts have ruled that it is unconstitutional to force a parent to pay for college tuition. In rare cases, a child may also reach emancipation when they marry or seek a termination of parental rights.
Child custody orders or parenting plans also end at emancipation, as the family court views the child as a legal adult who can determine their relationship with their parents.
Federal Kidnapping Act
Whereas each state makes custody determinations of their own residents, the Federal Kidnapping Act has been adopted across the country to provide guidelines if a parent takes a child in violation of a child custody order. While many might question how a parent can “kidnap” their child, a parent will face sanctions if they remove a child from their jurisdiction, go to another country, or extend visitation beyond their court-ordered schedule. Additionally, a parent could potentially lose custody rights if they are found in blatant disregard of a custody order in violation of the Federal Kidnapping Act.