Child Custody Laws
Child custody laws differ somewhat from state to state. However, federal law requires states to honor and enforce the custody orders issued by other states.
Child custody determinations are often among the most difficult processes for divorcing parents. Splitting up a family unit and deciding where a child will live is heart-wrenching.
"Can I move out of state with my child?"
"How much time is the non-custodial parent allowed to have, by law?"
These questions are common and frequent. Custody proceedings, as well as residency requirements and other such regulations, vary from state to state.
This section provides an overview of child custody laws in the United States.
State Child Custody Laws at a Glance
Child custody laws differ from state to state. But all states have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), except Massachusetts. This act ensures the enforcement of child custody orders from other states to prevent child abduction and other custody problems that cross state lines.
Typically, state custody laws determine the types of custody allowed. State law also decides the visitation rights of grandparents and other family members. They also determine whether children have any say in the decision (usually above a certain age threshold).
Child Custody: Examples of State Laws
The following examples illustrate how custody laws vary in different states:
- Arizona: There is a presumption in favor of joint custody. The court can modify this if it is in the child's best interests.
- Connecticut: The law presumes that joint custody is in the best interests of the child if both parents agree to it. The court must provide concrete reasons for denying joint custody.
- Florida: The court may order a "time-sharing schedule," where parents alternate physical custody of the child. There is no designated primary custodial parent.
- Georgia: A child 14 and older may choose the parent with whom they would like to live. But the court may determine that living with the selected parent is not in the best interests of the child.
- Massachusetts: Either parent that seeks shared legal or physical custody is expected to submit a "shared custody implementation plan." The court may modify or grant this plan. However, the court may reject the plan entirely and issue a sole legal and physical custody award to either parent.
The Best Interests of the Child Standard
Most state family courts follow a certain standard to determine the custody of a child. They consider the best interests of the child above all else. Courts consider all factors together rather than one factor alone. Some examples of factors the court will consider include:
- The child's wishes (if the child is old enough)
- The needs of the child, including medical care
- The ability of each parent to care for the child, such as providing childcare
- The mental health and physical health of each parent
- Any evidence of substance abuse, child abuse, or domestic violence
Ultimately, the court is concerned with placing the child in a safe and stable environment that supports the child's welfare.
Types of Child Custody Arrangements
There are several different types of custody the court may award to the co-parents. Generally, family courts prefer joint custody arrangements. These are custody agreements where parents share both joint legal custody (the ability to make major decisions about the child's life) and joint physical custody of the child (where the child lives).
If a court finds that a parent is “unfit" to parent, the court may reduce their ability to exercise their parental rights. They may do this by giving the other parent sole custody of the child. This can mean sole legal custody and/or sole physical custody. A parent with sole legal custody is the main decision-making authority for the child. They will make important decisions about the child's life concerning health care and medical care, education, and religious upbringing. A parent with sole physical custody is one with whom the child primarily resides.
Just because the court deems a parent unfit does not mean they give up their parental responsibilities. The court may grant the non-custodial parent visitation rights in the parenting plan. Their parenting time may require supervision or periodic review by the family court. The court may also order this parent to pay child support. Child support is an obligation paid from one parent to the other to cover the costs of raising the child. Typically, this includes expenses such as food, housing, clothing, and education. It may also include extracurricular activities, depending on your state's child support laws.
Family courts can also make temporary orders for temporary situations. This order may be in place for a certain amount of time in special situations.
Custody of Embryos
With modern medical technology, custody matters have gotten more advanced. It is possible to freeze an embryo and preserve it outside of the womb. While an embryo technically is not a child, custody issues come into play when the parents get divorced or separated. But, since artificial insemination is a relatively new procedure, not all states have updated their statutes to account for custody issues involving embryos. Therefore, many states deal with embryo custody on a case-by-case basis.
Taxes and Child Custody
Since the federal tax exemption for dependents cannot be claimed by separate taxpayers, divorced or otherwise unmarried parents must consider the tax implications of a child custody order. Generally, the custodial parent is allowed to claim the dependent exemption. But the noncustodial parent may claim this exemption instead of the custodial parent if certain criteria are met. For instance, the IRS may choose the parent with whom the child has lived the longest as a "tiebreaker" when deciding who gets the exemption.
Getting Legal Help With Child Custody
Child custody can be a complicated issue. It can be extremely valuable to get professional help with your child custody case. A family law attorney can help advise you on your parental rights and custody rights. They can help you and your ex develop a custody agreement that works for you. They will even represent you in family court. Attorneys will help throughout the entire custody dispute until you get a final court order.
Talk to an experienced child custody attorney today.
FindLaw's Child Custody Section
Click on a link below to learn more about child custody laws. Be sure to check out FindLaw's State Laws section for specific details.
Can I Solve This on My Own or Do I Need an Attorney?
- Both parents can seek custody of their children — with or without an attorney
- An attorney can help get the custody and visitation agreement you want
- An attorney will advocate for your rights as a parent
A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.
Don't Forget About Estate Planning
Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.