Child Custody

 Divorced Families Co parentingJust when emotions are at their highest, couples must settle issues on how to divide the children’s time between them. One or both of you will likely request sole custody, making an already contentious divorce process off the charts more stressful.

Parents at odds with each other may unnecessarily fixate on the labels given to various custodial terms. Each state tends to define these terms in their own unique way, so all that matters is how your state defines terms like sole custody, joint custody, shared custody, legal custody, physical custody and so forth. And trust us, states do define these terms differently. Pay close attention to those definitions, as they will determine how the children split their time between you two. In general, these terms can be defined as:

  • Legal custody of your child means having the right and the obligation to make major decisions about his or her upbringing. Major decisions include education, religious instruction, and medical care
  • Sole legal custody – granted to only one parent, this custody type grants rights and responsibilities to make major (legal) decisions for your child regarding education, religious affiliation and health care
  • Joint legal custody – granted to both parents that give them the right to make important legal decisions for your child that include education, religious affiliation, health care and general welfare. One parent is generally designated as the primary custodian
  • Physical custody – refers to where and with whom your child will live
  • Sole physical custody is where your child lives primarily with one parent and has visitation with the other parent. The child may spend overnights, weekends and holidays with that other parent, who is often called the non-custodial parent
  • Joint physical custody – describes custody where your child lives with each parent for a substantial amount of time, although not necessarily split 50/50. Parents that get granted joint physical custody have demonstrated that they are able to set aside their difference and make sound decisions for the welfare of the child
  • Split custody – Courts will seldom but occasionally grant split custody to parents. This type of custody permits one or more children to live with one parent full time, and their siblings to live with the other parent full time
finger pointing rightRecently we received an email from a volunteer tutor who described a conversation with a boy caught in the middle of his parents’ divorce. The boy felt like he had to repeatedly take sides, and wished he didn’t have to do so. He searched on the internet and found a web site he felt was helpful, and wanted others to benefit from its message. The tutor shared this experience with us, and we pass along the link to honor the boy’s request and hope it does indeed help others by educating parents. Visit When a Child of Divorce Visits Parents: Think of the Child.

If it is over, get on with it and file. Begin your Do It Yourself divorce today

View your State’s custody criteria (pdf)
  • statutory factors
  • if a child’s wishes are considered
  • if the court will make a presumption in favor of joint custody
  • if being a cooperative parent is recognized
  • if domestic violence play a role in custody awards
  • whether the State has the authority to appoint an attorney or guardian ad litem for a child
finger pointing rightFinding yourself in the midst of a child custody battle is a little like hitting yourself in the head with a hammer. It feels so good when you stop. You better know the ropes even if you are represented, because it is mighty difficult to change it later.  Attorneys make mistakes. We all do. Avoid them. Get your own complete Child Custody Guidance for winning custody or preventing your ex from winning custody. You won’t get a 2nd chance to do this right.

Custody Laws and Domestic Violence

All fifty States, territories and protectorates have laws on the books pertaining to domestic violence. For those placed at risk (including children), it is universally recommended that one have the protection of the courts and the accompanying restraining orders that they issue.

Where children are present in at risk situations, it is also recommended that parents have a clear Parenting Plan approved by the court and provided to each parent in writing. For those at immediate risk, they can call a toll free National Hotline at 1.800.799.SAFE (7233) or  hearing impaired at 1.800.787.3224 (TTY).

Should you feel threatened, you should either speak with an attorney, call the police, call the court your case is being heard in, or all of the above.

For more information, see our Domestic Violence page.

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Custody Questions and Answers

The answer is maybe. If you can get out of town before your spouse files a restraining order to prevent you from leaving, you still have the hurdle of establishing residency. Once residency is established in the new state (6 months for the child), you may be able to file for divorce in that state but issues such as property division, support and custody may not be able to be decided because of jurisdictional issues. In the end, most parents cause themselves greater discomfort by moving first. In addition, courts frown on parents taking children away from the other parent. Your spouse could make a case that could put you in a bad light in front of the court, which can negatively impact who ultimately gets custody.

Leaving your children like that is frowned upon by the courts. Which one of you has done most of the parenting? Courts prefer continuity for children, meaning that if one parent did most of the care giving in the marriage, that parent is likely to be awarded physical custody (as the primary custodian) after the divorce becomes final. Are you moving nearby? Parents who don’t live close to each other will have a different arrangement than parents who live in the same city and school district. Shared custody arrangements can have many variations. There will usually be a primary residential parent and a non-residential parent, the latter spending less time with the child according to a standard visitation schedule. You presume you’ll get custody. Unless your wife is unfit, you have a 1-in 4 chance of being the custodial parent. Speak with an attorney first.

Yes, they certainly can, and they do if there is cause for it. The court will examine the facts, which will include any indication or evidence of alcohol, substance abuse or domestic violence. In the best interest of the child, the court has a wide range of options. Custody or visitation can be limited, denied or terminated depending on the court’s findings.

That’s going to depend on a number of factors, which include whether you are legally divorced or not, how your state defines adultery, and perhaps other laws that pertain to morality. It could be that courts in your state take a dim view of exposing a child to such a situation, where a nearby state may have a different opinion. Check with an attorney first.

First: Is there a court order in place that makes you the primary custodian? If there is an order, you need to contact the lawyer you used and ask him/her to help with an emergency order. If you cannot locate where your husband took the kids and you feel they may be in danger, call the cops. Second: If you don’t have a court order in place, you’ll need to GET an order in place. Call an attorney right away. If you and your child have established residency, your state will have jurisdiction, which can prompt the court to order that he or law enforcement return your child. In some states this can be construed as kidnapping if you have an order of custody issued by a court. You might consider calling the cops, but too often they won’t get involved without a court order. It doesn’t hurt to ask.

Be very careful here. The answer is probably not, but you must demonstrate to a court good reason for it. There may be exceptions, but a name change like you suggest is usually done when a step-parent adopts your children, and ordinarily that doesn’t happen without approval from the children’s father. Be aware that courts have seen it all, so if your aim to simply to change names to hurt your ex, they court will see through it. Also, be careful not to alienate your kids from your ex. He is a “part” of them, and denigrating him to them denigrates a part of them. You may not want any part of him, but your children’s best interests come before your’s.

Not even for a moment. Visitation and child support are two separate legal issues, and one does not impact the other, so the answer is: you may not. You cannot alter or modify the court-ordered visitation schedule until or unless you request modification and the court, based on relevant facts, rules in your favor. Parenting time is not dependent on whether a parent is on time with support, or not. Report him being behind to your local child support enforcement division.

Courts examine the following:

  • Your child’s age, gender, mental and physical health
  • The mental and physical health of the parents or guardians
  • The lifestyle (and lifestyle choices) of the parents. This can include if a parent smokes, who the parent lives with, etc.
  • The love and bond between your child and each parent, and the parent’s ability to provide guidance to the child
  • Provider capabilities – how well the parents can provide the necessities (food, clothing, shelter, medical care, etc.)
  • Your child’s daily routine (home, school, community, religious instruction, etc.)
  • The quality of your child’s education, especially if there is a desire to relocate the child from the area
  • Your child’s preference (once the child reaches an age where preferences can be properly formed), often age 12 or higher
  • The ability and willingness of the parents to promote healthy communication and contact between the child and the other parent
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