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The Child Custody Process
Child custody is an emotional experience. It is also is a complicated area of the law, mainly because child custody laws vary from state to state. In this blog, we will cover some common questions people have about child custody, and below is an overview of those questions.
Questions to Ask in a Child Custody Case
How do the courts determine who gets custody?
Contrary to what you may think, the court does not prefer to determine who gets custody of a child. If possible, the court prefers that parents work together to determine custody and parenting plans
between themselves, either directly or with the help of a third-party mediator or arbitrator
. After all, who knows what is in the best interests of a child better than his or her parents? Negotiating child custody directly allows you and your ex equal say in how you want to raise your children.
If the court must step in and make custody decisions, the overriding consideration will always be what is in the child’s best interests. Some factors that the court considers:
- Has one parent been the primary caretaker, or have the parents shared the responsibility?
- What is the mental and physical health status of the parents?
- Will the child be in a stable home environment?
- Will the child have an opportunity for interaction with members of their extended family?
- Are there any school or community adjustments that will need to be made?
- Is there any evidence of parental drug, alcohol, or sexual abuse?
Do I need to hire a lawyer?
No. A custody agreement can be worked out directly between parents, or with the help of a third-party mediator or arbitrator. Direct negotiations can work out well if the relationship between separating parents is reasonably amicable, and if they are filing for joint custody
. The parents must be willing to do some of the legwork with the court (such as submitting filing fees, setting court dates, etc.) on their own. The custody agreement you and your co-parent work out will have to be approved by a judge.
Consulting with a lawyer is advisable in these complicated situations, such as:
- One parent wants to file for sole legal or physical custody against the wishes of the other
- The parents live in different states
- One parent is remarrying or relocating
- A parent has concerns about the ability of the other parent to be a fit custodian for the children
How much will I receive in child support?
That’s difficult to say. State laws govern child support payments, and the laws vary greatly depending on which state you live.
- How many children need support
- How much time each parent spends with the children
- The amount of income each parent makes
- New biological or adopted children
- Childcare expenses
- Health insurance expenses
- The standard of living the child experienced prior to the divorce or separation
What if I believe my spouse is unfit to have custody of our children?
Every state has its own rules regarding what makes a parent unfit. The first thing you’ll want to do is research the regulations in your state to see if what you deem as “unfit” behavior even qualifies under the legal definition. Substance abuse, physical abuse, mental illness, or neglect are all generally accepted criteria as unfit.
If you want to have a spouse declared unfit but a court, expect a lengthy process. The burden of proof rests on you to prove your spouse is unsuitable, so you must have irrefutable evidence proving your claims. This evidence might include things like photographs, medical files, criminal records, or transcripts of conversations between you and your spouse. There also will likely be court-ordered psychological and medical evaluations for you, your spouse, and your child.
In a situation in which you need to prove a parent is unfit, it is highly advisable to consult with an attorney before proceeding.
Once you’ve filed for divorce, a temporary custody order will be put in place. Whether or not you can move out of state with your child will be determined by this temporary custody order. Most states require some form of written notice or consent from the other parent, particularly if the distance you want to move would significantly impair the ability of the other parent to spend time with your child. Relocating with a child without proper consent can lead to kidnapping charges.
At what age can children choose which parent they want to live with?
Children can make their own decisions about custody and visitation when they are 18 years of age. Prior to the age of 18, different states have different requirements for when they will allow a child to have a say in where they will live (usually around age 12 or 14), but the court does not have to follow the child’s wishes if they do not believe it is in the best interests of the child.
What is a guardian ad litem?
Guardian ad litem
(or GAL, for short) is a person appointed by the court to act as an independent investigator and make recommendations as to what custody situation would be in the best interests of the child. The guardian ad litem will talk to the child, parents, family members, friends, teachers, counselors, and social workers. After interviewing and evaluating all the information in a custody case, the guardian ad litem puts together a written recommendation as to the living situation they believe is in the best interests of the child. The judge in a custody case does not have to do what the guardian ad litem recommends but will take the report very seriously.
Yes, a parent can regain custody even after previously losing custody rights. The parent that lost custody must prove to the court that they are improving. They can do this by changing their circumstances or corrected the problems that led to the loss of care. There must be compelling evidence that it is in the best interests of the children for custody to be restored.
TalkingParents blogs are for informational purposes only and should not be construed as legal advice. Always consult with a qualified attorney regarding legal matters.