What Are Parental Rights in a Divorce?

By Victoria McGrath

Parental rights can change drastically during divorce proceedings. Before the court issues a custody order, you and your spouse maintain equal rights to care for your child on a daily basis and make major decisions regarding your child's health and welfare. Once a judge issues a temporary or permanent child custody order in a divorce, the court order establishes each parent's parental rights and responsibilities. These rights traditionally include legal custody and physical custody of a child.

Equal Parental Rights

Prior to filing for divorce, married parents share legal custody and physical custody of their child equally. Under legal custody, each parent maintains rights and responsibilities to make critical decisions regarding the child’s education, religious instruction, medical care, mental health treatment and overall well-being. Under physical custody, each parent also has the right and responsibility to provide a safe and secure environment, including adequate housing, healthy meals, proper education, transportation and child care.

Temporary Custody Orders

During the initial stages of the divorce proceedings, before the court issues orders to modify the child custody arrangements, both parents typically continue to share legal custody and physical custody of the child. But some states, like Connecticut, create automatic court orders that take effect as soon as married couples with children file for divorce. These automatic orders generally restrict parents from leaving the state or denying the other parent visitation. In many states, like New Hampshire, parents can attend a preliminary hearing to establish temporary custody orders. When the court issues a temporary order for custody, the judge may also order temporary spousal maintenance and child support.

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Parenting Agreement

After filing for a divorce, parents can present a parenting plan to address child support, child custody, parenting time and visitation schedules. If parents agree to share legal custody and physical custody of a child, the court can approve the parents' agreement. In approving parental agreements, courts always consider the best interests of the child, the child's bonds with each parent and the child's special needs. If the judge finds that the agreement is not in the child’s best interests, she can issue a custody order contrary to the parents’ written agreement.

Court-Ordered Mediation

Prior to issuing a final custody order in a divorce, many courts require parents to attend court-ordered mediation, meet with a family counselor or participate in a parent education program. In Utah, for example, the court can assign a parent coordinator to work with one or both parents and make a recommendation that is in the best interests of the each child. The parent coordinator is a mental health professional with experience in child development. In New Hampshire, the court requires parents to attend a four-hour class on how divorce affects a child’s life. Court-ordered mediation helps parents negotiate parental rights and visitation schedules.

Scheduled Visitation Rights

When parents cannot reach an agreement, the court makes a determination regarding physical and legal custody based on the best interests of the child. The court can order joint or sole legal custody, and joint or sole physical custody. If the custody order establishes a custodial parent and a noncustodial parent, the court generally grants the noncustodial parent visitation rights.

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Child Custody Cases During a Divorce

References

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Parental Rights in a Non Married Relationship

Marriage is not a prerequisite to parenthood. The Centers for Disease Control and Prevention note that in 2009 alone, a surprising 41 percent of all births were to unwed mothers. For married couples, parental rights are assumed and automatic. While unmarried couples enjoy many of the same parental rights as married couples, the route to establishing those rights is often more complex.

What a Judge Looks at in Custody Hearing in Illinois

Custody disputes may be a highly contentious and emotional issue for recently divorced parents. In making a custody determination, Illinois courts look at evidence that shows what is in the best interest of the child. To help in this determination, the court may appoint individuals to represent the child's interests. However, custody orders may not be permanent, and either parent has the right to request modification of a custody order if the circumstances change.

New York State Divorce and Fathers' Rights

New York divorces often include custody and visitation issues if the spouses have children together. If parents can't agree on custody rights or plan a visitation schedule, the court handling the divorce case may make a court order for custody. A father's rights generally rely on the paternity, custody and divorce laws of the state, and depend on the terms of the divorce.

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