It is estimated that parents of more than one million children in the United States get divorced every year. In addition, children of parents who are unmarried, already divorced or deceased increases the number of cases where courts are deciding child custody throughout this country.
As with every other area of the law, each state has its own laws dealing with child custody issues. This section will deal with child custody in general terms. If you have a specific question regarding child custody you should consult an attorney in your state.
Best Interests of the Child
Most jurisdictions refer to the “best interests” of the child and this is sometimes an overstatement. Obviously, the interest of a child are taken into consideration, but so too are the parents interest in raising their child.
Types of Custody
Child custody refers, in general, to the custodial arrangement between the parents post-divorce. Courts can award sole custody or joint custody. This should be differentiated from legal custody and physical custody. Legal custody generally refers to which parent or parents are authorized to make decisions regarding the child’s care and physical custody in which the child’s living arrangements are determined.
Most courts deciding child custody will begin making decisions pending divorce litigation and post-divorce. The orders may be temporary, as in the case of pending litigation or final, like post-divorce orders. Often, if there is a change in circumstances, either parent may go back to court to ask for a new court order if the changes affect the child’s welfare or safety.
Factors included in deciding child custody usually include claims made by each parent regarding custody, which parent has been the primary caretaker of the child, the character and conduct of the parents and their relationship with the child, any agreement between the parents pre-divorce which may be contained in a separation agreement, and the child’s preference. Other factors may include a finding that neither parent is suitable as the child’s custodian and visitation rights of the non-custodial parent.
In addition, in many jurisdictions, the new norm has been to award joint custody. Joint custody is thought to allow both parents and the child to enjoy the benefits of childrearing and to preserve contact between both parents and the child. The psychological benefits for the parents and the child are evident. From a practical standpoint, in a joint custody arrangement it isn’t just one parent’s responsibility to raise the child his or her self, including arranging for daycare, work concerns and time for other activities. Also, joint custody may force both parents to work together to raise the child and eliminate some of the acrimony that may be felt by either or both parties post-divorce.
If the parents are so argumentative or hostile towards each other that a joint custody arrangement may actually be detrimental to the child’s well being, then the court may look to award sole custody. Factors determining joint custody can include the parents’ fitness, agreement or disagreement on joint custody, the parents’ ability to communicate and to cooperate when it comes to the child’s welfare, the geographical proximity of each parent and the possible harm to the child’s psychological or emotional development.
One obvious problem with a joint custody arrangement is when one parent decides to move. When this occurs, the court may then grant sole custody to one of the parents. Another problem is when a disagreement occurs between the parents that they just cannot agree on. In those instances, the court may wait until the parents finally reach an agreement, the court may decide the issue, or the court may side with the primary physical custodian of the child.