Firstly, truly the most important thing to consider in the event of a custody battle is to never use your child as a bargaining chip to hurt or manipulate the other party involved. In the end, you will be harming your child’s emotional and mental wellbeing, which can damage your ability to gain any kind of custody. All of these can be significantly expanded upon by your attorney should you be seeking a divorce where children are involved. Make sure you know all your options and rights as a parent/grandparent/step-parent, and always keep the child’s best interests in mind.
For most couples going through a divorce, it is tremendously stressful and is a deeply emotional affair. Adding children to the equation can be even more wearisome. Unfortunately, in situations where the divorcees aren’t on the greatest of terms, custody battles over the child(ren) are common. Fortunately, there are several different types of custody agreements and combinations to best suit each couple’s case. The principal factors in establishing a custody agreement are which arrangement is in accordance with the ‘best interests of the child’. This includes:
- Needs, physical and emotional health, safety, and welfare of the child
- Capability of parent(s)/grandparent(s) to meet these needs
- Wishes of the parent(s)/grandparent(s)
- Wishes of the child, if they are capable of making decisions for themselves
- Strength and length of the relationship between the child and the parent(s)/grandparent(s)
- Evidence of abuse, neglect, and substance abuse by the parent(s)/grandparent(s)
- The child’s adjustment to home, school, or community
- The ability of the parent(s)/grandparent(s) to provide love, affection, and contact with the child
- The physical distance between the child and the parent(s)/grandparent(s)
Basic Custody Arrangements
1. Legal Custody
A person’s decision-making authority for a child, whether or not the child is physically placed with the legal custodian. This authority involves major decisions such as non-emergency medical care, enlistment in the military, obtaining a driver’s license, consent to marriage, religion, and choice of school. This is usually shared between the two parents.
In most situations, legal custody is a workable arrangement, especially if the parents are actively cooperative with one another in making decisions for their child(ren) together. In situations where the parents aren’t on good terms, but they’re both granted legal custody, problems arise when one parent attempts to limit or take away the other parent’s legal custody rights. This often leads to significantly more time in court and more stress on the child. Ultimately, most state courts will avoid granting one parent sole legal custody to not cause further stress and turmoil within the family.
2. Physical Custody
A person’s right to have the child in their care, and make routine decisions such as childcare, schooling, religious upbringing, etc. These decisions should be consistent with the wishes of the person who has legal custody of the child. This is the most common type of child custody.
In most situations, both parents would prefer to have physical custody. Joint custody (where both parents are allowed physical custody) is only granted when both parents plan on living close enough to one another that there is less stress on the child going between each parent’s house. If this is not the case, and the parents live too far apart, one parent may be granted sole physical custody. In that situation, the child will live primarily with one parent, and the other parent will have visitation rights (should it be deemed appropriate).
3. Sole Custody
This refers to a situation when only one person has decision-making authority under both legal and physical custody.
One parent is granted responsibility/custody of the child. This usually occurs when one parent is deemed unfit to care for the child and is unable to make decisions in the best interests of the child. In recent years, there has been some leniency given to the parent without custody to give them more visitation rights.
4. Joint Custody
When two parties both have decision-making authority under legal and/or physical custody.
Joint custody gives both parents the rights to the house of the child as well as make decisions listed under legal and physical custodies (medical, religious, school, etc.). Joint custody can also include combination arrangements where both parents have legal custody; both parents have physical custody, or parents share legal and physical custodies. In situations where both parents share legal custody, sometimes only one parent is granted physical custody.
5. Grandparent/Step-Parent Visitation
The step-parent’s or grandparent’s ability to petition the court to be granted visitation of a child. For grandparent visitation, there must be specific criteria met. If the child’s parents are unmarried, and the child maintains a substantial relationship with the grandparent, or if the other parent is interfering with the relationship, then the court may grant visitation. A step-parent may be granted reasonable visitation if they have maintained a parent-child relationship and visitation is in the child’s best interests.
Visitation privileges are granted to grandparents/step-parents as long as they continue acting in the best interests of the child. In some instances, custody may be granted to grandparents/step-parents if they can prove the parents as unfit to properly care for the child in question.
6. Custody to Agency or Relative
A relative or child welfare agency may be given custody under circumstances where neither parent can care for the child. This may result in additional involvement by the child welfare agency.
If the parent/s of the child is/are proven to be unfit, custody can be given to a relative who can properly care for the child, as well as maintain a good relationship with them. If options are few, the Child Welfare Agency may become further involved with the need to arrange for the child to be placed with a foster family, and eventually start processes for reunification and/or adoption with other permanent family connections.
Contact our family law attorneys today for a free consultation.