What Is Child Custody?
When two married people with children decide to get a divorce, child custody becomes an important legal issue. Child custody refers to the legal obligation of the parents or guardian to take care of, supervise, educate, and manage all aspects related to the well-being of a minor child. This is a responsibility which cannot be ignored, and usually the matter of child custody arises in the following situations:
- When a married couple with minor children/child get a divorce.
- When unmarried parents of minor children/child are unable to agree upon their custody.
- When a legal guardian or parent is found unfit for looking after the children/child’s well-being and, hence, is considered unfit to take on the role of a custodian.
- When both parents of minor children/child are deceased.
Child custody is not limited to parents and can also be granted to other family members, a foster parent or a group home/institution. Custody can be granted by a court in one of the two categories: Legal or physical. These categories are assigned as either sole or joint.
Legal Custody
This type of custody deals more with the responsibilities of a parent rather than focus on where the child will live. It ascertains who will make decisions regarding the major issues in the child’s life, including those related to education and healthcare. These issues have a direct impact on the child’s welfare. If joint legal custody is granted, both parties must work together to communicate and arrive at a mutually agreeable decision.
Physical Custody
This category of child custody focuses more on the physical location of the child. This means addressing where the child will live, how long will he or she stay there and who will be responsible for the child. It must also be decided which parent will decide on the child’s everyday activities and general well-being.
If joint physical custody is granted, the child will spend a predefined amount of time living with both parents/guardians in their respective homes. This, however, does not mean that the child will spend an equal amount of time with both parents/guardians. A clearly defined arrangement will be arrived at by both parents, which will include shared payments for raising the child.
Regardless of the court’s ruling, every state in the country understands that the child custody arrangement must always be in the child’s best interest. The general understanding is that if both parents/guardians can get along amicably, then the court will likely award joint physical and/or legal custody. In order to make a child custody arrangement that suits all parties involved, it is best to consult an experienced family law lawyer.
What is in the Best Interest of the Child?
In every state, the judge will use the term, ‘best interest of the child’ as a standard for deciding child custody and use his/her own subjective beliefs regarding what will be best for the child. Some have criticized this method for being too subjective. A judge will consider certain factors in any state across the country regardless of their own beliefs. These may be:
- Child’s Preference: The judge will want to know which parent the child has deeper emotional ties with, which parent has a greater tendency to care for the child’s needs, and which knows what the child likes, etc.
If the child is around the age of 12, the judge may ask them to choose the parent they will prefer to live with. The judge can also ask the child for preferences regarding visitation.
- Abuse or Neglect: If the judge finds evidence of one parent being abusive, they are likely to get limited contact with the child. The court wants to be sure that the child will live in a safe environment and any history of domestic violence can greatly affect the judge’s verdict on custody and visitation rights.
- Both Parents’ Living Situation: Studies have shown that unstable living conditions can have a negative effect on a child’s mental well-being. The judge considers which parent can offer the most stable living condition to the child. The judge evaluates the condition of the parent’s home, and considers if it is close to the child’s current school district. A few other questions that are asked are:
- How long has the parent lived at this address?
- Who else lives in the house?
- Is it a safe environment to raise a child?
- Do the child’s friends and relatives live nearby?
- Ability to Provide: The judge will want to determine which parent is better equipped to provide for the child. It will also be important to know which parent puts the child’s needs first. Having greater financial ability doesn’t automatically mean that the parent is more inclined to spend on the child. The judge will also want to know:
- Which parent currently buys the child’s clothes, toys, or other items?
- Which parent pays for and takes the child to the doctor/dentist?
- Who pays for child care?
- Who is currently paying for, and is better equipped to deal with, any special needs that the child may have?
The judge will also look at the earning capacity of each spouse and both parties may be asked for an opinion on their former spouse’s money management skills.
- Relationship Toward Other Parent: Ideally, the court will want the child to have access to both parents. To this end, the court will check if both parents get along and how they speak about each other in front of their child. If the court finds that either spouse has attempted to, or shown a desire to, keep the child away from the other parent on purpose, it can influence custody and visitation rights.
Divorce is an emotionally draining and difficult time for anyone. Having a child with your ex-partner can make the process a lot more complicated because it becomes important to put the child’s future welfare before everything else. Any custodial decisions taken by the court will greatly impact your child’s well-being. You and your partner should therefore put aside your differences and aim to do your best to protect your child’s needs – now and in the future.