Reasons to Deny Custody

By Beverly Bird

Divorcing parents can't deny each other custody, but courts can do so. Judges typically do their best to preserve the relationship between a child and both parents, but this doesn't work in all circumstances. Courts rarely order joint custody when parents can't get along well enough to make it work. As a result, one parent ends up with custody and, barring egregious circumstances, the other gets visitation.

Divorcing parents can't deny each other custody, but courts can do so. Judges typically do their best to preserve the relationship between a child and both parents, but this doesn't work in all circumstances. Courts rarely order joint custody when parents can't get along well enough to make it work. As a result, one parent ends up with custody and, barring egregious circumstances, the other gets visitation.

Legal vs. Physical Custody

An important distinction exists between legal custody and physical custody. Legal custody has nothing to do with where your child will live post-divorce. It deals with whether you or your spouse will make important decisions on her behalf, such as those relating to schooling or elective medical care. Courts generally prefer that parents share decision-making when at all possible, ordering joint legal custody. Physical custody refers to which parent your child will live with most of the time, and courts are slower to award joint physical custody. This means children must bounce back and forth between parents' homes on a roughly 50-50 basis. A judge might sign off on such an arrangement, however, if you agree to it and if you make the request in a parenting plan filed with the court as part of your divorce. It's not likely that the court would issue an order for joint physical custody if one of you objects.

Divorce is never easy, but we can help. Learn More

Best Interests of the Child

When courts must decide legal or physical custody, the judge's decision comes down to what's in the best interests of the child. This involves a list of statutory factors that a judge must weigh for each particular family. For example, one factor is often which parent was the primary caregiver during the marriage, because courts strive to keep some consistency in children's lives post-divorce. If mom was traditionally the caregiver, she'd "win" on this factor. Another consideration is often which parent is most like to facilitate an ongoing relationship for the children with their other parent. If mom has a history of interfering with visitation while the divorce has been pending, dad might "win" on this factor. Now the parents are tied – each is the preferred parent in one category. States' best interests lists usually involve at least 10 factors, however, and judges can give some factors more weight than others. In the end, one parent usually comes out ahead. That parent typically gets physical custody, while the other receives visitation rights instead.

Child's Wishes

Some states include a child's wishes in their best interests factors. This is rarely controlling – if all other factors favor the parent the child does not want to live with, this would override the child's preference. If parents are essentially tied, however, this factor could tip the scale toward the parent the child prefers, particularly if she is a teenager. A perfectly capable parent might be denied physical custody for this reason.

Factors Prohibiting Physical Custody

Some serious issues can make custody – or even visitation – dangerous or detrimental for a child, and these can trump other statutory best interests factors when they exist. For example, a parent who has been convicted of domestic violence may be denied custody, whether the violence was perpetrated against the child's other parent, the child herself, her siblings, or even another family. Drug or alcohol dependency can cause a court to deny custody, as can threats or attempts to kidnap the child and remove him from the court's jurisdiction. These issues might even extend to others living in your household, such as if you move out of the marital home and take on a roommate who uses illegal drugs or has a history of violence. Even in these cases, however, the court might only deny physical custody, not visitation. Public policy holds that children should have a relationship with both parents. Courts might order supervised visitation instead of no contact at all, where a neutral third party is always present during parenting time to ensure the safety and best interests of the child.

Divorce is never easy, but we can help. Learn More
Factors Used in Determining Child Custody

References

Related articles

Who Has the Advantage in a Custody Battle?

Custody disputes in a divorce really are a lot like battles, as you line up your arsenals of evidence and testimony, then fire it all off at the judge to persuade him to rule in your favor. In one respect, this is what courts intend – at least, they don't want you heading into the fray thinking that one spouse already has an advantage over the other. Custody is decided based on the best interests of your child after the court weighs a series of factors.

Things to Consider Regarding Custody

Courts often are called on to make child custody decisions, but more states are requiring parents to be involved in the process. Some states mandate mediation, while others order parents to formulate plans or take parenting classes. Parents are in the best position to weigh the many considerations that go into custody decisions and anticipate the reactions and needs of their child.

A Tennessee Divorce: Can an Abusive Husband Get Custody of the Children?

Tennessee law favors joint custody when couples divorce, but Section 4:1.04 of the state's code instructs judges that "in domestic abuse cases, joint custody is inappropriate." If a judge follows this rule and does not order joint custody after an abusive marriage, it's unlikely that he would give sole custody to the parent who made joint custody inappropriate through his abusive behavior. This would effectively reward him for committing the abuse.

Get Divorced Online

Related articles

Rules for Divorce and Custody in Arizona

The hardest part of divorce is often realizing that you might no longer get to live with your children full time. ...

Rights of Divorced Parents Sharing Custody of a Child

While child custody and visitation is dictated by state law, every state awards custody and visitation based on the ...

How to Change Joint Custody When the Non-Custodial Parent Leaves the State in Arizona

Divorces represent an opportunity for couples to move on. For some, this process involves physically relocating to ...

New Jersey Law on Joint Physical Custody

New Jersey courts don't often order joint physical custody arrangements, but "order" is the operative word. ...

Browse by category