Child custody is one of the most important aspects of a divorce settlement. If you think about it, the whole idea behind the state coming up with a divorce law is not necessarily to ensure a means for people to dissolve their marriage. This article will take you through all you need to know about Child Custody Laws.
People being people, a relationship can and often go through strain. People do grow apart, and there are many situations where, unfortunately, people who got married would feel that it’s best to part ways. As crucial as that social value may be, the main point of modern divorce law is to provide for the children of such unions.
Divorce ensures that whatever happens to the marriage, children will have the support that they need so they can adequately develop and grow into productive adults.
Accordingly, child custody is one of the most important aspects of a divorce settlement. It could be argued that it is the most crucial. There are specific ways on how to execute an equitable distribution of properties as well as a precise method of determining the most appropriate spousal and child support.
However, custody of the child in a divorce is a primary concern because the separation of both parents most impacts children. It is not just a simple case of splitting up money and making sure that one party continues to support his or her children until they turn 18.
What will the court look to?
- The court will always rule based on the best interest of the children in a divorce case. Generally, the court will take into consideration numerous factors that are at play like which parent the kids prefer to stay with.
- Judges will also look at how cooperative the parents are with each other. It can also factor in any instances of domestic violence or child abuse.
- If both parties indicate that they favor joint custody or they explicitly authorize joint custody, this is an option. The court will also pay attention to any statutory requirements in its particular state jurisdiction.
- Finally, the attorneys or the guardian for the child will also have their say in swaying the court’s decision. There are generally two categories of child custody, legal and physical. The court may rule towards several types of child custody.
These are temporary, exclusive, and joint custody. These impact the visitation rights of the non-custodial parent. It’s best to put all these into consideration before filing for divorce, otherwise, you may not stand a chance if the child custody is acrimonious.
A Quick History of Child Custody Laws
In 1873 in the UK, the Tender Years Doctrine was founded. It said that children under 16 years old must be under the care of their mother. This principle started the trend of usually awarding custody, in divorce proceedings; to the mother unless a showing can be made that she is unfit.
US states adopted this mandate to the present time. What complicated child custody laws were the significant rise of divorces in the 1960s. This increase was due to the adoption in many jurisdictions of “no-fault divorces.”
The idea is to enable women who find themselves in unhappy or abusive marriages to have quick access to divorce. Previously, fault-based divorces took a lot of time, legal argumentation, and cost quite a bit of money.
With the rise in no-fault divorces, the standard changed from the “Tender Years Doctrine” to “the best interest of the child”. In 1979, the California Supreme Court passed the joint custody ruling. This law was one of the first legal recognition of the father’s role in children’s development.
Jurisprudence gave a bit more favor to child custody for fathers. What caused this to happen, of course, is that more and more women were entering the workforce. This reality opened the door, however, to more complicated child custody questions.
Instead of simplifying divorce proceedings, it increased the chances of tedious custody battles.
Categories of Child Custody Laws
Child custody laws may be broken down into two types—sole or joint custody. Legal custody refers to the responsibilities and rights of a parent to a child. This right involves being able to make important decisions for the child involving medical issues as well as educational choices.
All of these decisions are intended to boost the overall welfare of the child. Physical custody dictates where the child physically stays and with whom and for what length of time. This right pertains to the day-to-day decisions made for the child’s well-being.
Whoever has physical custody can make other decisions regarding that child as long as that child stays with that particular parent.
Joint custody involves both parents openly communicating with each other and having an equal share of both legal and physical custody of their children. It goes to show that you may have to prepare for this in the best interest of the children.
Child custody types in terms of duration
Temporary custody determines where the child will stay while divorce proceedings are ongoing. Exclusive custody grants a parent sole rights to the child and excludes the other parent from any involvement. From time to time, visitation may be allowed, but under strict supervision.
Joint custody gives equal rights to both parents, both legal and physical. They can make collective decisions in the child’s best interest and must agree upon a physical agreement to achieve such an arrangement.
There are cases when the court grants custody of a third party. For example, if the court, in considering the best interest of the child, thinks that a grandparent would be in a better position to take care of the child’s well-being, then the child’s physical and legal custody will be awarded to the grandparent or any suitable third party.
In situations where there are multiple children, the best course of action is to allow them to live together for emotional support. This decision is the general rule. However, if the kids fight all the time or there are specific issues, splitting them may sometimes be beneficial. Therefore, the court will keep this in mind.
Visitation Rights in Child Custody Laws
The law favors the right of a non-custodial parent to visit the child. Even though it’s not explicitly stated in the custody’s decree, it is assumed. In other words, this is the presumption unless the order has a specific prohibition-denying visitation to a parent.
Generally, this kind of ban is only allowed if the visit will pose a danger to the child. Maybe the non-custodial parent has a history of child abuse. Perhaps the person has a criminal conviction involving child abuse, or they have a mental illness or emotional disorder.
In cases where one parent fails to abide by the visitation decrees, for example, by preventing the non-custodial parent from visiting, the custodial parent may be ordered to comply through a court filing or court complaint.
There may be instances when a spouse decides to use sneaky tricks to gain child custody at the detriment of the other partner who may be better suited to take care of the well being of the child.
On the other hand, some spouses use child custody to blackmail their soon-to-be-ex to get a better bargain in spousal support.
What factors do different jurisdictions weigh when it comes to child custody laws?
Different states in America, as well as different countries, have their child custody laws depending on the following factors:
The child’s own specific wishes regarding custody
The cooperation of both parents
If the marriage broke up due to domestic violence or any other kind of abuse
If joint custody is currently under negotiation
If both parents have expressly authorized joint custody
Statutory limitations and factors
The presence of guardian ad litem or attorney for the child
Keep the information above in mind when it comes to child custody. While the law does have certain presumptions and patterns, these can be overridden with the proper showing.
As can be seen, most of these issues are not too difficult to agree upon, especially if you adopt a divorce mediation method in resolving the marriage