How To Get Custody
There are many scenarios in which a parent or close relative will want to get custody of a child. Child custody hearings can be emotionally difficult. This is because the stakes are so high for everyone involved.
Courts generally make child custody decisions based on what the court determines is in the best interests of the child.
While parents can work out a custody arrangement on their own, the court must still approve it. If you're in a custody dispute, it's important to understand the process. You should also understand how the court makes custody decisions.
This article provides a brief overview of how to get custody of your child.
Negotiating Child Custody Arrangements Informally
In the best-case scenario, parents will work together through informal negotiations to make decisions for their child. They can do this with or without the assistance of attorneys. They must come up with a custody arrangement and parenting plan. Once the parties have arrived at an agreement, it should be in writing. This is usually called a "settlement agreement" or "custody agreement," depending on your state.
If the parents can agree and the court decides the terms are in the child's best interests, the court will approve the plan. There are no further hearings needed in these situations.
Using Alternative Dispute Resolution for Child Custody Decisions
- Collaborative family law
The advantage of using ADR over a traditional courtroom setting is that it tends to be much less adversarial. The goal is to compromise rather than simply determine "winners" and "losers." For ADR to truly work, the parents must be willing to work together to reach a solution that's best for the child.
Mediation and collaborative family law are the most commonly used forms of ADR for child custody cases. In mediation, the parties discuss the situation and propose solutions. They then devise a plan with the help of a neutral third-party mediator. Attorneys may also be present.
Collaborative family law is like mediation, with a few important differences. While the goal is to create a "win-win" situation for the parties, as in mediation, neither party may go to court. If court action is threatened, then the attorneys are automatically disqualified. The process is over. The parties must then hire new counsel or represent themselves if they wish to have custody decided by the court.
What Is a Parenting Agreement?
When the parties in a child custody dispute have hashed out their differences, compromised, and agreed to a set of rules for custody and visitation, they draft a parenting agreement. This often involves help and input from attorneys. The parenting agreement may also be called a "custody agreement" or "settlement agreement."
Once signed by the parties, the court can issue an order. Parenting agreements typically include the following:
- Which parent has physical custody
- Which parent has legal custody
- How future changes to the agreement will be handled
- Schedules for visitation with the noncustodial parent
Many states have statutes, or court rules, that require other particular provisions to be included in the agreement. This is another reason the assistance of an attorney is helpful. They can draft a strong parenting agreement.
The Child Custody Hearing
Most child custody hearings are relatively informal. The judge will ask each party several questions to determine whether they understand the terms of the parenting agreement. They will ask whether any disputes remain. If the parties have come up with a valid parenting agreement, there will be a court order.
If the parties have not reached an agreement or are unwilling to work together, the judge will decide who gets custody of a child. Custody proceedings are complex. The court considers multiple factors before reaching a decision.
How the Court Decides Child Custody
Ultimately, the court makes decisions about the custody of the child based on what the judge finds to be in the best interests of the child. This means the court will decide custody based on considerations of safety and the welfare of the child. The court is the ultimate decision-making authority. They will consider several different factors in making this important decision. Some factors for custody determinations include:
- The needs of the child
- The ability of the child's parents to provide care for the child
- The physical health and mental health of each parent
- The amount of time each parent has spent with the child
- The quality of the relationship between the child and each parent
- Any evidence of substance abuse, alcohol abuse, or domestic violence
The court may order a custody evaluation to assess the family's situation. During custody proceedings, parents may have questions about parental responsibility. A custody evaluator might ask you about major decisions, such as those involving healthcare or your child's education. The court may issue temporary orders if custody proceedings are ongoing.
Types of Custody Arrangements
Courts prefer to give joint custody to co-parents, where parents share parenting time. In some joint custody arrangements, parents share both joint legal custody and joint physical custody. If a court finds that a parent is “unfit," they may award sole legal custody and/or sole physical custody to the other parent. Legal custody refers to a parent's ability to make major decisions about the child's life. This includes decisions about topics such as healthcare or education. Physical custody refers to where a child primarily lives.
The court might order the non-custodial parent to pay child support. The court may also award visitation rights to the other parent or another family member, such as a grandparent. Remember, custody arrangements are not set in stone. They may be modified if there is a substantial change in circumstances. For example, if one parent moves away or becomes unable to care for the child, you may need to revisit the custody arrangement.
Legal Advice for Parenting Agreements
It is important to have a parenting agreement to provide clear guidance for child custody. An experienced attorney can help you negotiate an agreement and represent you in any custody or visitation disputes.
Lawyers can advise you on child custody laws and your parental rights. They will explain the different types of custody to you. Attorneys will assist with custody issues until a judge signs a final custody order. Get help today and find an experienced family law attorney near you.
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.