Child custody determinations are often the most difficult processes a divorcing parent will have to undertake. Splitting up a family unit and deciding where a child will live can be heart wrenching. Child custody laws differ somewhat from state to state, although federal law requires states to honor and enforce the custody laws of other states. "Can I move out of state with my child?" "How much time is the non-custodial spouse allowed to have, by law?" These questions are common and frequent. Custody proceedings, as well as residency requirements and other such regulations, change from one state to another.
State Child Custody Laws at a Glance
While state child custody laws differ somewhat from state to state, they all have adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), with the exception of Massachusetts. This act protects custody orders from other states in an effort to prevent child abduction and other custody problems that cross state lines. Typically, state custody laws determine the types of custody allowed; the visitation rights of grandparents and other non-parents; and 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: No presumption in favor of joint custody, but it may be granted if both parents agree, submit a plan, and it is in the child's best interests
- Connecticut: It is presumed 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 "rotating" custody (parents alternate physical custody of child, as no primary custodial parent is designated)
- Georgia: A child 14 and older may choose the parent with which he/she would like to live
- Massachusetts: Each parent is expected to submit a shared custody plan, which may be modified or granted by the court; the court may reject the plan entirely, thus awarding sole custody to one parent
Custody of Embryos
With modern medical technology, 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.
One of the more high-profile cases involves actress Sofia Vergara and her ex-fiancé Nick Loeb, who split up after having embryos created with their genetic material. While their original contract stated that both parties must consent prior to them being brought to term, Loeb argued that it should be voided because there wasn't guidance for what would happen should they split. Loeb filed a lawsuit for custody of the embryos in 2015, arguing that they should have the chance to be brought to term. As of September 2015, this matter is not yet resolved.
Taxes and Child Custody
Since the federal tax deduction for dependants 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 dependant exemption, but the noncustodial parent may be able to 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 with the longest as a "tiebreaker" when deciding who gets the exemption.
Click on a link below to learn more about child custody laws, and be sure to check out FindLaw's State Laws section for more specific details.