When parents divorce or unmarried parents split up, one or both parents may file a custody petition in their local family court. The most important factor in determining custody is the best interests of the child. If, however, a parent has a negative incident or situation in their past or present, the court may have a solid reason for denying them custody of their child.
Preferences in State Law
For many years, the law preferred the mother to be a child's custodian. Most states now have laws that neither parent is the preferred parent after an uncontested divorce.
Despite that change, some fathers still believe they have less of a chance than the mother does of getting custody in their state. Laws are ever-evolving and, hopefully, each state will have fair trials and settlements so that each parent has an equal chance of obtaining custody.
Legal Custody vs. Physical Custody
Courts like to see both parents involved in a child's life. As a result, many courts push for joint, or 50-50, custody, for couples who are divorcing. This split custody puts some parents under a tremendous strain, as many haven't previously been the child's primary caretaker. It's also not fair to the child to be bounced around between two homes. Accordingly, 50-50 custody is not appropriate in all cases.
Custody terminology can be difficult to understand, particularly since some states use different terms. For example, Texas refers to custodial parents as conservators. Custody terms are also sometimes combined with each other, such as in the case of joint legal custody and joint physical custody. The different types of custody are usually:
1. Physical custody. The child lives with one parent or splits their time living with both parents.
2. Legal custody. Usually referring to the decision-making authority, legal custody gives parents the right to have a say about major decisions, such as the child's education, religious practices, medical issues, vacations, and any other issue other than day-to-day matters.
3. Joint physical custody. Both parents have possession of their child, either by alternating weeks with the child or splitting the week down the middle. Although such a situation may work for young children, it's generally not in the best interest for nursing babies or school-age children. The judge could award 50-50 custody, 60-40, or other percentages that make sense or that the parents agree to. Joint physical custody may also be referred to as shared or split custody.
4. Joint legal custody. Both parents share major decision-making authority.
5. Sole physical custody. The child lives with one parent all the time, while the other parent may or may not have visitation rights, depending on the circumstances.
6. Sole legal custody. Only one parent has decision-making authority.
Common Reasons for Denial of Custody
Each state has its own laws about how to decide custody and when to deny it. There are many reasons a parent might not be awarded custody while the other parent receives sole, or full, custody.
Winning custody is based on which parent can protect the child's best interests. Some of the reasons for custody denial include situations where there is:
- Child abuse, sexual abuse, or neglect
- Child abandonment
- Failure to prove you're the primary caretaker
- Failure of an unmarried father to prove paternity of the child
- Failure of either parent to support the child, as both parents are responsible
- Parental mental illness or substance abuse
- Domestic violence towards the other parent
- Failure to maintain stability in housing and, sometimes, in employment
- A parent whose schedule doesn't permit lots of time with the child, meaning the child would be in daycare, after-school programs, or with other supervisors more than with their parent
- A desire by an older child to live with a specific parent
- A parent who is less able to handle a child with special needs
- A parent who is less able to promote the child's emotional well-being
- Parental alienation by one parent against the other
- A lack of good judgment and parenting skills
- Disparagement of the other parent
- Incarceration and other reasons why the parent is unavailable
- An instance where a parent has made false claims to authorities, such as to child protective services or to police
- An open child protective services case against you
- A cohabiting significant other who has a mental illness or who has committed substance abuse, domestic violence, child abuse, neglect, or sexual abuse of another child
If you want to obtain sole custody of your child and you have one or more of these situations in your history, consult a family attorney in your area for assistance with your case.
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