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Child Custody Rights During Separation

By Christopher Coble, Esq. | Last updated on

Child custody issues are usually resolved as part of divorce proceedings. But what happens before the divorce is finalized? How do you sort out child custody if you and your spouse are separated?

Fortunately, most child custody decisions are made on a single legal principle. Unfortunately, divorcing parents still tend to fight bitterly over custody. Here are your child custody rights before a divorce and some ideas for making child custody decisions during a separation.

What's in the Child's Best Interest?

Child custody can be contested in a variety of contexts: pre-divorce, post-divorce, and between non-married parents. But in each case, child custody decisions are made in the child's best interests. While this sounds simple enough, the best interest standard can vary from state to state, and courts and mediators can consider a range of factors when making child custody decisions:

  • The child's wishes, if the child is old enough and state law allows
  • The mental and physical health of the parents
  • The need for continuation of stable home environment
  • Any adjustment to school and community
  • Evidence of parental drug, alcohol, or sex abuse or parental use of excessive discipline or emotional abuse
  • The interaction and interrelationship with other members of household, and members of extended family of either parent
  • Religious and/or cultural considerations

Ultimately, courts will try to craft a custody arrangement in the best interest of the child or children involved.

Many Types of Child Custody

What the best interests of the child rule doesn't spell out is exactly how that can be accomplished. There are various types of child custody, each with different legal and practical considerations.

While physical custody refers to where a child lives day-to-day, legal custody determines decision-making responsibilities for the children, including educational, medical, and religious decisions. These can be especially difficult to determine before a divorce, when parents may still be legally married and even living together.

In addition to physical and legal custody, parents, courts, and administrators have to determine whether parents will have joint custody or whether one parent will retain sole custody. Sole custody arrangements are rare, however, as courts generally prefer to have both parents involved in a child's upbringing. And while 50/50 custody arrangements may be hard on parents, there are ways to make it work.

How to Get There

The best way for separated parents to determine custody rights is for the parents to work together to resolve custody disputes. If parents can come to a mutual agreement regarding child custody, courts will generally honor it. Depending on the relationship you have with your spouse, informally negotiating a custody arrangement can be less contentious than fighting it out in court. That said, parents that negotiate their own custody agreement should still put the understanding in writing, in case a dispute arises later.

Parents can also avoid traditional court battles by choosing to decide child custody issues through alternative dispute resolution such as a mediator. Taking a collaborative approach to determine child custody can be better for both parents and children, and also be a more constructive and quick path to a mutually agreed upon parenting agreement. And if you are attending child custody mediation, make sure you're well-prepared.

If parents can't come to their own agreement, and mediation proves fruitless, they may have to go to court to decide child custody. While child custody is normally determined as part of a formal divorce, it may be possible to have a court rule on child custody matters before filing for divorce. As noted above, courts will make custody decisions based on the best interest of the child and will be legally binding.

Other Considerations

The primary concern for any parent during a separation or divorce is his or her children. As emotionally confusing and difficult as separation can be on a parent, it can be doubly so for children. And there are better and worse ways that parents can handle child custody matters.

The less you fight with your soon-to-be ex, especially in front of your children, the better. Also, the more calm and composed you can be when approaching mediation or court hearings, the more likely you are to get the child custody arrangement you want. If you'd like some advice on helping your kids through the custody process, Sesame Street is here to help.

Separation can be an emotional and legal gray area. The child custody process can be overwhelming. Even if you are negotiating child custody issues with your spouse, you may want an attorney to review your parenting agreement. And it may help to have an attorney during mediation, to deal with both the mediator and your spouse's attorney.

And no parent should contest for child custody in court without the help of an experienced child custody attorney. The filing and evidentiary procedures can be complex, and an attorney will know how to best advocate for the child custody arrangement you want.

If you are trying to assert your child custody rights during a separation, you should consult with an experienced child custody attorney near you.

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