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How Child Custody Decisions Are Made

How Custody Decisions Are Made

There are several important issues whenever child custody rights are determined. If you're going through a divorce, you'll want to know whether your child will live primarily with you, and if not, whether you'll be able to make important decisions as to how your child will be raised. If you're a close relative or family friend of a child who is not your own, you may be wondering if getting custody of that child is even a possibility.

For parents and others without a lot of experience with the child custody system and family court, they may question: How are child custody decisions made? The following is a brief discussion about making child custody decisions.

Divorce and Child Custody Decisions

If you're a parent considering divorce, or if you are already involved in the process, you are probably wondering how child custody and visitation issues are resolved. In general, child custody and visitation will either be decided by agreement between the divorcing couple (usually with the help of attorneys and mediators) or by the court.

More specifically, custody and visitation decisions typically are resolved in one of two main ways in a divorce:

  1. The parents reach an agreement on child custody and visitation, as a result of informal settlement negotiations (usually with the help of attorneys) or out-of-court alternative dispute resolution proceedings like mediation or "collaborative law" (usually with the help of attorneys).
  2. The court makes a decision on child custody and visitation (usually a family court judge).

Unmarried Parents and Child Custody Decisions

The rights of unmarried parents in child custody may depend on if both are legally recognized as the parents of the child. If the parents are not married, the parents may have to acknowledge the father's paternity. If the father's paternity is not voluntarily acknowledged, the court may have to establish paternity with a DNA test.

Generally, both parents have a legal right to be part of their child's life. This includes making parenting decisions for important issues like education, health care, and religion. It is generally best for everyone if the parents can agree to a child custody and visitation arrangement out-of-court. This allows the parents to work out an agreement that works best for them, without relying on a judge to come up with the agreement. If the parents can't agree or mediation does not work, the case will have to be decided by a family court judge.

The court may prefer to give both parents shared custody but, in some cases, primary custody of one parent with visitation rights by the other may be in the best interests of the child. The court may use several factors for making child custody decisions, including:

  • Stability and continuity of the child's home life, education, and community life
  • Availability of extended family
  • History of abuse
  • Child's preference (usually given more weight with older children)
  • The child's physical, emotional, developmental, educational, and special needs

Ultimately, the court will base its decision on what it believes best serves the child's best interests.

Non-Parental Child Custody Decisions

Other relatives or important people in the child's life may also have an interest in making sure the child is well cared for. Non-parents who may want to take custody of a child may include stepparents, grandparents, or other family relatives, particularly if they have been the child's caretakers.

In some cases, relatives or other individuals or agencies may file for custody rights of a minor child. This generally requires showing the child is in danger or the parent is unfit or has abandoned the child. If a non-parent files for custody, the court will decide if the parents are unfit or whether the non-parents can take temporary custody.

Stepparents generally do not have legal rights (or responsibilities) over the child of their spouse. For a stepparent to have custody and visitation rights for the child, the stepparent would have to adopt the child. This generally requires having one of the parents give up their parental rights so the child could be adopted.

In some states, grandparents may be granted visitation rights. For example, in North Carolina, an order for custody of a minor child may provide for visitation rights for a grandparent where there is a "substantial relationship."

Questions About How Child Custody Decisions Are Made? Talk to an Attorney

If you're going through a child custody battle, you'll want to know the laws and how decisions about your child will be made. A good way to learn about the child custody laws in your state is to reach out to a local child custody attorney who can explain the laws, and represent your interests.

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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