Child Custody
Child Custody
What does the court consider when deciding custody?
The courts use the best interest of the child test which can vary somewhat by jurisdiction. However, most courts consider the fitness of the parents, including each parent's ability to provide adequate food, clothing, shelter, care, education, and a positive living environment. The court will also consider the relationship between each parent and the child(ren), keeping in mind that every child is entitled to the love, nurture, advice, and training of both father and mother.
What is sole custody?
Sole or exclusive custody gives legal and custodial rights to one parent. The child lives with the custodial parent, and the custodial parent is given the power to determine the child's upbringing including his education, health care, and religious training.
What is joint custody?
The most common form of joint custody is joint legal custody with primary physical custody (the child lives with this parent) given to one parent and visitation rights are generally given to the non-custodial parent. Joint or shared custody gives both parents legal decision-making authority over the major decisions affecting the child.
What is divided custody?
Divided or split custody may give each parent exclusive decision-making authority with respect to the child in his or her care or may give the parents joint legal custody.
What is physical custody?
In almost all circumstances, the primary home of the family is considered community (or marital) property. When determining division of marital assets, the court considers many things. Keeping the home is viewed as tantamount to providing stability when children are involved and the parent awarded primary custody will most often remain in the home. If children are not involved, it is more likely that the home may be sold. However, adjustments in maintenance and alimony can be made to avoid selling it.
What is legal custody?
Legal custody refers to the decision-making authority for the child(ren) regarding education, religion, medical treatment, extracurricular activities, and all other parenting-related decisions that need to be made for the child(ren).
What is joint-legal custody?
Joint legal custody implies that both parents retain all legal rights with respect to their child(ren) and neither parent's rights are superior. Joint legal custody requires an ongoing decision-making process between parents, which closely resembles the intact nuclear family. Parents must consult with each other regarding the child's health care, education, religious training, extracurricular activities, summer activities, discipline, curfews for school nights and weekends, and age of driving. Neither parent, (custodial or non0custodial), has the presumption in his or her favor as to choice of school or church.
Does the court have to decide who gets custody of the child(ren)?
It is generally accepted that parents are in a better position than almost any third party to know their own family situation (the needs of the child(ren) and the parents), and some state statutes presume that an agreement between the parents regarding custody of the child(ren) is in the child's best interests. However, the judge still will make the ultimate decision and will need to approve the agreement to make it legally binding. Additionally, the judge can find the agreement not to be in the child's best interests. For example, if the parents try to bargain away the child's rights.
Does custody affect child support?
Many states have child support formulas which allow for reductions in the amount of support paid as the amount of time with the child increases. However, the reduction formulas vary widely among jurisdictions and are decided on the individual circumstances of each situation. What may be even more confusing is that "shared" custody for purposes of the physical residence of the child may not mean the same thing as "shared" custody for purposes of getting a reduction in support which may also require a sharing of expenses. For legal advice regarding your situation, or to discuss your child custody questions, contact an experienced divorce and child custody lawyer.
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