Deciding child custody and visitation can be a struggle for parents after separating from their child’s other parent.
How do judges and courts decide custody and visitation rights? Each state’s laws, and the practices of their courts, vary. Refer to a child custody attorney in your state for legal advice regarding your situation.
Here’s a look at what courts consider when deciding which parent to award custody to.
What Are the Types of Child Custody?
The courts will refer to these arrangements as something else. Custody can be in the form of legal custody or physical custody.
Physical custody is how much time a kid spends with each parent and is commonly referred to as timesharing, parenting time, or visitation.
Legal custody is the capacity to make major decisions in a child’s life, like schooling, health care and religious upbringing. Most courts favor joint legal custody orders, which allow each parent equal input into their child’s health, safety and well-being.
Joint custody and sole custody apply to both physical and legal custody. Joint legal custody is more common, where one parent has most of the physical custody, and the children have less than equal time with the other parent.
That might be the situation where the children reside with Parent A and spend alternate weekends and perhaps one evening a week with Parent B. In a week-on/week-off type of arrangement, parents often split joint physical custody, and spend equal time with the kids.
That is outside the norm where one parent has both sole legal and physical custody and there is such a significant cause that one parent is not on any custody papers.
How Is Custody and Visitation Decided?
Child custody can be determined based on a parenting plan and legal custody agreed on by both parents.
If the parties cannot mutually agree on legal custody and a parenting plan, the court will decide this issue, with a court order.
If an agreement is settle down between the parents about the legal custody and visitation schedule, they will not have to go to court and have a judge determine their child custody case.
Parents can fashion creative solutions tailored to their family’s needs rather than gamble on an unpredictable ruling in a courtroom. Mediation is one option when parents need to craft a custody order that they both agree to.
What is the Best Interests of the Child Standard?
However, the court will always issue child custody orders by looking at the “best interests of the child.” Judges take into account the living arrangements of both caretakers and make adjudications that serve to promote happiness, safety, psychosocial health, and development overall.
What Determines the Child’s Best Interests?
The elements the court considers when determining the child’s best interests vary by state. While it may help to know the child custody law that generally applies in your area, the best place to understand it is a family law attorney who has experience in child custody and visitation laws.
A family court judge will decide on child custody in consideration of a few factors. Those factors a judge considers when making custody decisions include:
- The wishes of the child
- The age and sex of the child
- Any extra emotional or medical requirements
- The dynamic between the child, parents, and any other children
- The physical and mental health of the parent
- The parent’s ability to provide stability, lifestyle and basic necessities for the child
- Any domestic violence occurring in the house
- The child’s current living situation and routine, including caregivers, schools and extracurricular
- The emotional, social, and emotional consequences for the child if there would be a change in custody.
- Other relevant factors
Childs Desires
A child’s preference is just one of many factors the judge weighs.
How much the judge weighs the child’s wishes also depends on the child’s age. For instance, a teen’s desire may be more compelling than a 6-year-olds.
But it’s important to realize that in most states, until a child turns 18 years old, the child has no say about where they live, who has custody, or how often they see the other parent. They have a voice, just not a choice.
Does a Parent’s Gender Matter in Custody?
Historically, judges had taken a parent’s gender into consideration when making custody determinations. Until recently, there was a bias in favor of giving custody of children to their mothers. Today a judge will determine the fitness of both parents as custodians of the child, without consideration of the parent’s gender.
Expert Evaluations
A judge can also enlist the help of a guardian ad litem, social worker, custody evaluator, or mental health professional to make a custody recommendation to the court.
In such cases the judge will frequently turn to experts with special knowledge about the area in question. The specialists might have spent more time with the family members and other caregivers, seen how they behaved with one another and collected pertinent information.
What Is Reasonable Visitation?
Reasonable visitation from parents is often included in child custody agreements. Reasonable visitation doesn’t give the custodial parent the a-bility to decide when a parent can visit their child because it has to be reasonable.
The judge will weigh the child’s schedule, the parent’s schedule and other pertinent factors. Such factors include whether there is a history of domestic violence or substance abuse. The custodial parent must provide reasonable contact (both visitation and telephone contact).
Custody & Visitation If You Were Not Married
If you were never married to the other parent, the court will still determine what custody should be ordered with the best interest of the child in mind. And you won’t have to decide the other issues commonly resolved in a divorce, such as property division and spousal support.
If you are addressing paternity, it is possible that it will be part of the proceeding through which you are establishing the original legal custody and parenting time order. You can establish paternity in several ways depending on local laws. If you are the child’s father and not married to the child’s mother, consult with a family attorney on the steps you can take to prove paternity.
What Is Included in a Parenting Time Order?
You have the ability to customize the parenting time order to suit your children and family to however you see fit. The agreement can incorporate any specific considerations you want to address. The court can issue basic orders, but judges have shown resistance to getting overly creative without input from the parents.
There are a few fundamental details your parenting agreement should address, including:
Who has physical custody and legal custody and whether it is sole custody or joint custody are all custody labels
- The visitation timetable
- Any modifications to the visitation schedule for holidays, summer, vacations, and school breaks
- How the child will be transported to and from parenting time
- How parents intend to address any future disagreements
- How parents will address any future changes
Getting Court Approval
If you do reach a parenting agreement, the court will need to review and approve the agreement to ensure that it is in the child’s best interests.
The court may set a court hearing to ensure both parents understand the agreement and agree to be bound by the agreement.
The child custody decision is significant and an essential element that you have to consider for the child’s need nowadays and the future. If you have questions about how the court decides who gets the children then speak to a local child custody lawyer for more information.
