Parenting resources
8 Common Child Custody Questions & Answers
Child custody is a complicated area of the law, leaving co-parents with plenty of questions.
Posted on
Updated on
The child custody process can be a complicated and emotional experience. It is also a complex area of the law, mainly because child custody laws vary from state to state. Even with these complications, several questions are commonly asked by current and future co-parents about child custody.
8 questions to ask in a child custody case
1. 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. The courts prefer that parents work together to determine custody and parenting plans between themselves, either directly or with the help of a mediator or arbitrator. Negotiating child custody outside of court gives you and your ex an equal say in how you want to raise your children.
If the court must step in and make custody decisions, its overriding consideration will always be in the child’s best interest. Some questions that the court considers include:
- 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 to interact 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?
2. Do I need to hire a lawyer?
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 well if the relationship between separating parents is reasonably amicable and they file 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. A judge must approve the custody agreement you and your co-parent create.
Consulting with a lawyer is advisable in complicated situations where:
- 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
3. How much will I receive in child support?
That’s difficult to say. States govern child support payments, and the laws vary greatly depending on which state you live in. Common factors that affect how child support is calculated are:
- 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 child’s standard of living before the divorce or separation
4. 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. In this situation, consulting with an attorney before proceeding is highly advisable.
Expect a lengthy process if you want a spouse declared unfit but a court. 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 photographs, medical files, criminal records, or transcripts of conversations between you and your spouse. In addition, the court will likely order psychological and medical evaluations for you, your spouse, and your child.
5. Can I move to another state with my child?
Once you’ve filed for divorce, a temporary custody order will be placed. This temporary custody order will determine whether you can move out of state with your child. 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 be considered parental kidnapping and lead to legal charges.
6. When can children choose which parent they want to live with?
Children can make decisions about custody and visitation when they are 18. Before 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.
7. What is a guardian ad litem?
A guardian ad litem, also called a GAL, is a person appointed by the court to act as an independent investigator and recommend what custody situation would be in the child’s best interests. 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 for the living situation they believe is in the child’s best interests. The judge in a custody case does not have to do what the report recommends but will take its recommendations very seriously.
8. If a parent loses custody, can it be regained?
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 correcting the problems that led to the loss of care. There must be compelling evidence that it is in the children’s best interests for a parent’s custody rights to be restored.
Dozens of questions can arise when preparing for a child custody case. TalkingParents keeps all interactions on an Unalterable Record, giving you peace of mind by getting the full picture of messages, call records, payments, and more with timestamps. Whether you need to organize your co-parenting situation or prepare evidence for family court, TalkingParents is a game-changer inside and outside of the courtroom.