Child custody proceedings can be extremely contentious because both parents generally believe they're trying to do what's best for their children. Each state has its own set of laws covering the standards under which custody is granted, the procedure for filing for custody, and the circumstances under which sole or joint custody is appropriate. If you wish to seek custody of your children, consider hiring a family lawyer who can help you navigate the often complex family law system.
Types of Custody
There is a distinction in the law between physical and legal custody. Physical custody represents the personal time each parent spends with the child. Joint physical custody arrangements, for example, typically grant parents equal time with the child. Legal custody is the authority to make decisions regarding the child. In sole legal custody arrangements, one parent has final authority, while in joint legal custody arrangements, parents must make decisions together.
Best Interests Standard
All states use the "best interests of the child" to determine child custody and visitation. Some states allow judges substantial freedom to determine what factors should be considered, while others outline specific criteria a judges must consider. Some common considerations include the attachment between the child and her parents, each parent's skill as a parent, the child's adjustment to her environment, each parent's ability to help the child maintain a relationship with the other parent, and the desires of the child.
Abuse and Addiction
In most states, there is a rebuttable presumption that a parent with a history of domestic violence, child abuse or drug dependency is an unfit parent. Judges assume that it is not in the best interests of the child for these parents to have decision-making authority. However, they may still receive visitation; visitation may be supervised or unsupervised depending on the specific circumstances of the case. If a parent has sought treatment for mental health problems, he may be able to argue that it is now in the child's best interests for him to be granted custody or visitation.
Most states use child experts in some custody cases. Guardians ad litem are people — usually attorneys — who are appointed by the judge to investigate a custody case, file a report and file motions on behalf of the child. Their sole job is to represent the best interests of the child, even if the child's best interests conflict with what the child wants. Court-appointed special advocates — volunteers who are often social workers or psychologists — often advocate for children in divorce cases involving abuse or the foster care system. In custody hearings, both parents may appoint expert witnesses, such as psychologists or therapists, while judges may appoint child experts to present reports on the psychological health of the child and both parents.
Until recently, many states gave mothers preference in custody hearings. Some states, such as Tennessee, used the "tender years" doctrine until the late 1990s. This doctrine stated that, unless a mother is declared unfit, she should have custody of babies and very young children. Many states, however, now have gender-neutral custody laws that explicitly state both parents have equal rights to their children.
References & Resources
- The Art and Science of Child Custody Evaluations; Jonathan W. Gould et al.
- The Mason Law Firm: Types of Child Custody
- Family Law in a Nutshell; Harry D. Krause et al.
- Family Law; Leslie Harris et al.
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