Have you found yourself in a situation that requires determining child custody for one or more children? Hopefully, in a custody situation, both parents can work out an amicable custody agreement. In many cases, however, the process turns into a custody battle, and the best option is to get a lawyer who practices in child custody law.
In this article, we’re going to teach you some general information about child custody law. This information will help when you meet with a child custody lawyer at an initial consultation. We’re also going to explain different ways that a child custody lawyer might be able to help your situation. Finally, at the end of the article, we link to our guide which lays out the specific steps to take on how to get a lawyer.
General Information On Child Custody Law
Before we proceed, you need to know that the information provided on this webpage is only general information about child custody law. It is not legal advice and it is not even specific advice. Instead, it is general information to help you prepare for a consultation with a child custody lawyer. At the consultation, the lawyer can give you legal advice on your specific situation.
Basics of Child Custody Law
Here are the basics that you need to know about child custody law:
First, child custody law applies to children under the age of 18, but there are some exceptions under state law for children over 18 if they have specific developmental disabilities.
Second, state law governs child custody law. Every state has a slightly different take on child custody law, and an experienced child custody lawyer best explains these nuances.
Types of Child Custody Agreements
Each state has unique child custody laws and every state provides has different types of custody agreements. Here are a few of the most common types of child custody in different states:
Temporary custody is custody granted by a court for the duration of the custody hearing. If the court determines both parents are mostly good and there are not any abusive or extenuating circumstances, the court often awards temporary custody to the parent who is remaining at the house where the child is already residing.
Physical custody determines where the child will live. The court generally bases this determination on what is in the best interest of the child. The court will assign one parent as the legal custodian, and the child will live with that parent.
There are two types of physical custody:
- Physical Joint Custody
- Physical Sole Custody
Physical Joint Custody
In physical joint custody (also called physical shared custody), a child lives with both parents. The amount of time spent living with each parent could be split equally or some unequal amount, like 50/20. The court bases their determination on what is in the best interests of the child.
Physical Sole Custody
Physical sole custody (also called physical exclusive custody) is where a child will live exclusively with that parent.
The question that often arises is if a parent doesn’t get physical custody, can they still get visitation rights? In most situations, the answer is yes. There are rare situations where a court might deny or severely limit visitations, such as when it would endanger the health of the child or impair the child’s emotional development. For example, a court might deny visitation for a parent that is an alcoholic or a convicted of certain sexual crimes.
After granting physical sole custody, the court then determines the visitation structure. Visitation is often structured by some agreement by each of the parents. For example, the parents could agree to an every other weekend schedule, with alternating holidays and summer vacations. If the parents cannot agree on a plan, the court will intervene and consider what is in the best interest of the child. The goal is to set up a schedule that will cause the least amount of harm to the child.
A child custody lawyer helps negotiate a fair visitation agreement. Also, an attorney should explain that failure to follow the court’s rules in the visitation agreement can cause the court to find the parent in contempt. Being found in contempt can lead to jail time and hefty fines.
In addition to deciding physical custody, a court will also determine which parent receives legal custody of the child. Legal custody determines which parent is allowed to make decisions regarding the child’s upbringing. These decisions include choices regarding religion, medical treatments (ex., vaccinations), school choices, doctors, dentists, etc.
Similar to physical custody, there are two types of legal custody:
- Legal Joint Custody
- Legal Sole Custody
Legal Joint Custody
In a legal joint custody arrangement, both parents work together to make decisions regarding the upbringing of the child. A court will often award this when the separation is amicable and both parents share the same set of beliefs regarding religion, medical treatments, school, etc.
Legal Sole Custody
A parent with legal sole custody is in exclusive control of all the decisions regarding the upbringing of the child. For example, if mom wants her child to go to church but dad doesn’t, the parent with legal custody could get to make the determination. Unfortunately, children get caught in the middle, and these choices affect the direction of their life.
You should talk to your child custody lawyer about your specific situation. They can advise you on the best course of action.
Other Types of Custody
A lawyer should also explain any other child custody types that might exist and are relevant to in the particular state.
For example, another type of custody is called split custody which can occur when there are multiple children. In split custody, one parent gets sole custody over one child, and the other parent gets sole custody over another child.
Many states also have something called third-party custody. A court will grant third-party custody when they determine it is not in the best interest of the child to live with either parent. The court will attempt to appoint a relative of the parent as a guardian.
Each state has its own laws regarding custody so there might be other types that your lawyer could go over in detail. These types of custody designations could include alternating custody, bird’s nest custody, etc.
Best Interest of the Child Test
In almost every situation involving custody, courts make their determination based on what is in the best interest of the child. This test has been the standard used for the past 50 years by every court in every state. In answering what is in the best interest of the child, a court will look at numerous factors:
Wishes of the Child
In custody situations, courts often do not consider the request of children under a certain age. Even if the child screams and yells that they want to live with one parent, a court can completely ignore their pleas if they are young enough. These determinations are up to the discretion of the court and the state law in the state where the child custody case is taking place.
On the other hand, courts give the opinion of older children more consideration in custody determinations. The judge will usually ask the child to come into their chambers with the parents not present, but only their lawyers, and ask the child his or her wishes. This separation from their parents allows the child to give a more truthful expression of their wishes and desires to the judge.
Wishes of Each Parent
People often think that courts don’t care about the wishes of the parents. This is not true. On the contrary, a judge is very inclined to side with the parents regarding certain elements on which they both agree. For example, if both parents agree that their child should attend a specific church or school, or have a certain doctor, the judge will often abide by these wishes.
The times when a judge is less likely to listen to the wishes of the parents is when neither parent can agree. In these situations, the judge will then ask the child their opinion if the child is old enough. The other thing the judge might do is just ask themselves what is in the best interest of the child.
Relationship of the Child to Each Parent
A lawyer will say that every custody situation is different and unique. In some of these custody agreements, the relationship between the child and each parent is of critical significance. A court will consider whether one parent has been staying home to raise the child while another works. The court will also consider who spends the most amount of time with the child, how child-rearing duties have been split, etc. The judge has a lot of latitude in what he or she can consider in regards to this factor.
Relationship of the Child to Any Siblings
The relationship of the child to any siblings is another factor a court will consider. How old is the child compared to their siblings? Are they the same age or is there a large disparity between their ages? What school do both of the children attend? The same school or different schools? Do the children enjoy each other’s company or do the, for lack of better words, hate each other’s guts? These considerations are all very important to a court when determining custody.
Harmful Conduct by Either Parent
The court will strongly consider any conduct by either parent it finds detrimental to the child. Examples of such dangerous behavior can include past or present charges or instances of:
- Child neglect
- Sexually oriented crimes
- Drug use
- Alcohol abuse
- Physical or mental disabilities of a parent affecting their ability to care for the child
If neither parent has engaged in any of this harmful conduct, the court then looks at who has been the primary caregiver for the child. For example, one parent staying home with the child while the other works could make a court award custody to the parent who stayed home with the child. This situation is not as strong a factor when the child is older and in school all day. In these situations, the court may give more weight to the child’s wishes.
A court can consider anything else that might be relevant to making a custody determination.
- Physical environment around the child such as school, church, home life, etc
- Mental health of the child
- Health of the child and any existing special needs
- Community and environment around the child
- The school or church they attend and the city the child lives
Common Child Custody Questions
Here are some of the most frequently asked child custody questions that lawyers who practice child custody law receive.
Do Moms Always Get Custody?
No. A mother is not assumed to receive custody automatically. A court starts its decision with the assumption that both parents are equally capable of raising the child. The court then looks at what’s in the best interest of the child to make its custody determination. This determination requires evidence put forth by both parties showing that they are best suited for raising the child.
But realize that the gender of the child can play a factor in the determination. The lawyer could argue that mom should have custody of her daughter because she understands girl issues such as dating and high school. Lawyers know how to make these novel gender-specific arguments and have experience identifying which might work with a particular judge.
Parents need to also keep in mind that any decision that involves humans involve personal biases. If the child is a girl and the judge thinks that their mom would better raise girls than dad, that bias can affect the judge’s decision. However, the judge is supposed to remain impartial. It is a balance and a lawyer can help ensure the parent is getting a fair treatment.
Does Cheating or an Affair Affect a Court’s Decision?
In general, instances of cheating or an affair do not affect decisions regarding child custody. A possible exception is where the cheating or the affair harmed the child.
Can the Custody Agreement Change?
Yes. A court can change the agreement based upon changing circumstances. If instances of harm or neglect arise, the court might reduce or eliminate visitation rights of one of the parents. Also, the child’s wishes get more important as they get older. However, this doesn’t mean a child that doesn’t like one particular parent can stop visitation.
Can a Child Refuses Visitation?
No. The child and parent cannot deny the other parent their visitation rights. Failure to permit visitation can result in contempt charges. Contempt is a very serious offense and can result in jail time and hefty fines.
How a Child Custody Lawyer Can Help
There are many ways in which a child custody lawyer can help you when you’re involved in a child custody battle.
Let’s face it. Many child custody disputes are called battles for a reason. In many situations, both parents are going through a divorce and tensions are running high. It’s easy for each parent to give off a bad vibe to the judge who is looking at what is in the best interest of the child. When you try to do everything yourself, without a child custody attorney, your anxiety will be even higher.
Hiring a child custody lawyer takes a lot of this burden off you and helps lower your anxiety. When you lower your stress, it helps give off an impression to the judge that you are the best parent to care for your child.
Navigate and Explain the Law
It is usually a good idea to have an experienced lawyer by your side anytime you go to court. The laws surrounding child custody differ by state and are very complex. You need an advocate who can explain the intricacies of the law where you live. Also, child custody involves a ton of paperwork and documents which must be filed before certain deadlines. The complexity of these documents makes it difficult to do without an experienced child custody lawyer.
Help Document Involvement By Both Parents
The point we’ve tried to hammer home is that courts base their custody decisions on what’s in the best interest of the child. In making this determination, the court needs evidence which they gather from both parents.
If you hire a child custody lawyer, they will know what evidence is most relevant to proving you are the better parent. This evidence can include past involvement in your child’s life by you and lack thereof by your child’s other parent.
Your lawyer will also save you time from collecting evidence irrelevant to the custody determination. An action you think was immoral by your spouse may make a great novel, but it might be irrelevant to a court if the judge doesn’t believe it harms the child. A lawyer will know which evidence to collect and which to ignore.
Explain the Law
There is much more to child custody than in this article. Each state has its own unique laws and it is very difficult to figure these out without a child custody attorney with experience in these matters. You need to save yourself the headache of going it alone and hire a child custody lawyer. It is worth it for both you and your children.
Help Negotiate Child Support
In almost every child custody dispute, the issue of child support arises. If you don’t have a lawyer, you won’t even know where to begin. Your lawyer can answer any questions you have about child support and put your mind at ease. But without an attorney, you lose all the experience because you have likely never been through a child custody fight.
How To Get A Child Custody Lawyer
If you’ve come this far, then you should have enough general information about child custody law to assist a lawyer in advising you about your specific situation. Also, you should have a general idea about how a child custody lawyer can help your situation.
But before you start searching for a local child custody lawyer, there is one more step you should take. We highly recommend reading our guide about how to get a lawyer. In the guide, you will learn many things about how to get a lawyer. Here is an example of what you will learn:
- How to find a lawyer experienced with child custody law.
- How to research the lawyer’s background.
- Questions to ask before an initial consultation.
- Questions to ask during an initial consultation.
- Observations to record about the lawyer
- How to decide whether to hire the lawyer.
Once you read this guide, you should be prepared to hire a lawyer to help with your child custody needs.