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Getting Custody FAQ

When parents get divorced or separated, one of the most important determinations is who gets custody. This is generally a very difficult process for everyone involved, especially children. But regardless of the emotional challenges of custody disputes, courts take a measured approach to the process.

Getting custody of your child requires an understanding of the various factors considered by family courts. What follows are some of the most frequently asked questions we get regarding child custody, joint custody, child visitation, and family law.

Frequently Asked Questions

When deciding on the custody of a child, what factors does a court look at?

In almost all situations, a court will keep one primary question in mind when deciding a custody case, namely, what is in the best interests of the child? To answer this question, courts generally look at a number of different factors, such as:

  • A parent's financial and physical ability to provide a child with essentials like food, medical care, shelter, and clothing
  • A parent's medical history, both physical and mental
  • The child's age, sex, and medical history, both physical and mental
  • A parent's vocation and habits, including things like excessive drinking or smoking
  • The child's choice if the child is of a certain age, normally 12 years old
  • The emotional bond between child and parent
  • The wishes of both parents
  • The willingness of each parent to support the child's relationship with the other parent
  • The level of adjustment needed from the child if forced to move to a new school, city, or state
  • The quality of life the child enjoys in the child's current status quo
  • Whether any parent has brought false or malicious charges of child abuse on the other parent.

In assessing these factors, courts tend to look closely at which parent is most likely to provide the child with a stable household. This can vary depending on the child's age.

If the child is young, custody may go to the primary caregiver. However, if the child is older, custody may be awarded to the parent who is better situated to provide the child with access to education, friends, and social development.

Does it hurt my chances of getting custody of my children if I move out of the home and leave the children with their other parent?

Because of the importance of stability to children, a judge may be more inclined to grant custody to the parent that is currently residing in the home so as to minimize the disruption in the children's lives.

If you do move away from home and take the children with you, you need to be sure to go to court as soon as possible so that it doesn't look like you're attempting to take the children away unlawfully or deny the other parent visitation with the children. It is best to get an order establishing custody and a visitation schedule quickly so that the children can benefit from time with both parents and the stability it will provide. If you don't set up a court appointment right away, the other parent may ask the judge to take the children away from you as you took them without court authorization.

Who's more likely to be awarded custody of a child, mothers or fathers?

Although it has not always been so, today's courts will generally award custody to whichever parent would be in the best interests of the child. However, in the past, custody of young children (typically under five years old) normally went to the mother of the child if the parents divorced. This rule has been phased out in almost every state. Instead, judges must decide on the merits of the case which parent having custody would be in the best interests of the child.

These days, both men and women commonly enter into the workforce full-time, meaning that the custody decision could be as simple as who has been the child's primary caretaker, or which parent could spend the most time with the child, all other factors being equal.

For example, if a father works from home while the mother works a 60+ hour a week job as a corporate attorney, a judge may decide that the best interests of the child are to be with the parent that can spend the most time with the child, which would be the father in this example. Also, it's important to note that fathers are just as willing and able to be parents as mothers, and they can present that argument in court.

Is custody always awarded to just one parent?

In short, no. It is very common for a court to award partial custody to both parents, otherwise known as joint custody or shared custody. This type of custody arrangement normally falls into one of three forms.

First, joint physical custody is where a court orders a child to spend a substantial amount of time with both parents during the course of the year, potentially spending 50 % of the time with each parent. Second, joint legal custody is where, although one parent may have full physical custody, both parents must agree on any decisions that impact the child, such as their education, medical care, and spiritual matters. Lastly, both joint physical and legal custody is a combination of the first two.

It is ultimately up to the court to decide whether any type of joint custody is in the best interests of a child. However, you, as a parent, have the right to argue for joint custody if you so wish it.

I am a gay or lesbian parent seeking child visitation rights, are there any special considerations I need to take into account?

Based upon Obergefell v. Hodges, in which the U.S. Supreme Court held that laws forbidding same-sex marriage were unconstitutional, a homosexual parent's rights and obligations concerning marriage and divorce should be the same as those of heterosexuals, including child custody.

However, some state legislatures and courts have resisted Obergefell, and some judges may impose their own community expectations and biases onto a custody dispute involving gay and lesbian parents. It is often the case that a judge will weigh various factors in favor of a non-gay or non-lesbian parent when considering the best interests of the child and who will be getting custody of the child.

Do judges or courts even consider race to be a factor in child custody hearings?

Courts aren't allowed to consider race as a factor when deciding the best interests of the child and in determining which parent will be getting custody of the child.

Who will be the person deciding how much child visitation is fair and reasonable?

Some courts are allowing parents to make custody and visitation plans that the judge will sign into law. Parenting agreements, as they're called, are agreed upon visitation schedules and times where the child will be. So long as both parents agree upon the plan, they can make any visitation arrangements as they like. Otherwise, the court order or state statute will determine a minimum visitation schedule. Agreed-upon parenting agreements can also include plans that deal with how decisions about the child will be made.

For example, the agreement could include language that dictates that the parent with custody at the time of a medical emergency can make a decision about the child's health without consulting the other parent first. Parenting agreements are a great idea and you should look into it more carefully if you want to take full advantage of them.

Is mediation better than a court setting for determining child arrangements and getting custody?

Mediation is a great way to come to an agreement for custody instead of child custody lawsuits. The process of mediation works when both parents agree to sit down with a neutral third-party mediator. The mediator's job is to invoke discussion between the two parties to help them reach some middle ground to settle.

There are some great advantages to using mediation over litigation. First and foremost, it's a lot cheaper. Mediation often doesn't require either side to have an attorney present, nor does it require witnesses or other court time. This can save lots of money on both sides. Second, mediation by itself improves communication between the two disputing parties. By opening an honest discussion, many times problems can be resolved and the child will benefit the most by having both parents thinking along the same lines.

Finally, mediation is much faster than litigation. Litigation can often run for several months of court time, during which the fate of your child's upbringing causes you considerable stress. Mediation, on the other hand, often ends in a settlement in as little as 8 hours of discussion spread over two weeks.

Your local bar association should be able to point you to a local, experienced family law mediation clinic.

Need Help Getting Custody? Consider Calling a Family Law Attorney

Best interests of the child. Full-time custody. Half-time custody. The terminology can be confusing. If you're swimming in a pool of custody inquiries, now is the time to get those questions answered. A skilled attorney can explain the custody laws in your state; find a family law attorney experienced in child custody matters at FindLaw's attorney directory.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

Contact a qualified child custody attorney to make sure your rights are protected.

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