Child CustodyFAMILY LAW – CHILD CUSTODY AND VISITATION
Overview There is nothing more difficult than divorce and disputed child custody-related issues. Child custody is one of the biggest issues in a divorce. Over one million children experience parents divorcing each year. Child custody is the term used to describe the legal relationship (when pertaining to divorce) between a parent and child in regards to making decisions and the care provided. During the divorce proceedings, it is determined which parent has the best interests of the child and who can take best care of them. While parents usually agree to this, some do not. These disputes must be resolved by the family courts. The divorce decree will show who the child will live with and determine visitation to the other parent. Although Joint custody is best for the children because they will share equal time with both parents, other types of custody can be awarded. Factors in Determining Custody The overriding consideration in determining custody is always the child's best interests. If the parents cannot agree on a custody arrangement, the court will do so. If the child is old enough, the courts will discuss with him or her before making a decision. In addition, there is a preference for the parent who can demonstrate that he or she was the child's primary caretaker during the marriage. Primary caretaker responsibilities include bathing and dressing the child, cooking meals and doing laundry, taking the child for doctor’s appointments, making sure the child participates in extracurricular activities, and is able and willing to assist the child with school subjects. Addressing Custody Temporary Hearing Once the papers are filed for dissolution of your marriage, both parties attend a temporary hearing where the judge issues an order for temporary custody – until the final divorce decree is issued. In most cases, temporary custody is awarded to the parent remaining in the family home. Mandatory Mediation When the divorce is contested, most courts will require the two parties to attend mediation. The two parties meet with a neutral third party in hopes of resolving their child custody issues. The final divorce papers may include a provision allowing the couple to return to mediation for any future disputes.
Custody Evaluation A custody evaluation with a court-appointed psychologist or social worker is ordered before the trial begins if the parties cannot agree on a custody agreement. The evaluation consists of 2-3 discussions with each parent, the children, and possibly the children’s teachers. The evaluation includes an observation of the parents interacting with their children. In some instances, psychological testing of the parents and children are performed. Custody evaluations can cost you several thousand dollars. There are courts that offer lower-cost alternatives. You have the option of choosing an evaluator or allowing the court to do so. The court will not enter a custody determination until the evaluation has been completed, usually between 4 and 12 weeks. The evaluator will issue a recommendations report to the court specifying concerns of the parents and his or her suggestions. Custody is determined by the relationship of the parent with the child, each parent’s skills, psychological heath, and any history of alcohol abuse or violence. Trial Even though each state has different statutes regarding child custody, all courts determine custody based on the best interests of the child. Factors taken into account include which parent has the most stable home environment and who is in the best school district. Also taken into consideration are the child’s wishes, his or her age and sex. The court will look at the health of each parent, both physically and mentally; see if either parent drinks or uses drugs. The court will see if either parent has children from another relationship. Types of Custody Physical and Legal Custody Physical custody means the child will live with that parent. The parent will be responsible for day-to-day childcare. However, both parents will have legal custody of the child. Legal custody is the right to make decisions about the child's well-being, which includes health care, education, and religion. Joint Custody In some cases, the child will spend an equal amount of time with both parents - Joint custody. Seeing each parent an equal amount of time seems less like a divorce. However, having one home base is sometimes best for the child. Joint custody requires cooperation between the parents because they share responsibility for major decisions for their children. Joint and Legal custody usually go hand in hand. Sole Custody When the child or children live with one parent (custodial parent), it is considered Sole physical custody. The other parent is known as the non-custodial parent. Sole physical custody is usually awarded when one parent has a history of abuse or neglect. In this case, the non-custodial parent may receive restricted or supervised visitation. Split Custody Although not favored by most courts, split custody sometimes occurs. This is where one parent has custody of one child while the other parent has custody of another. Courts usually prefer not to separate siblings. Bird’s Nest Custody The children remain in the family home and the parents take turns staying there with them. Unmarried Parents In most states, when the child's parents are not married, the mother is awarded sole physical custody, unless the father contests this and fights for custody. In this case, the father often cannot win custody over a mother who is a good parent. Parental Alienation Syndrome Parental alienation syndrome is when one parent convinces the child that the other parent is bad and has nothing to give the child – resulting in the child not wanting to see him or her. Parenting Plans A parenting plan is an agreement between the parents regarding custody of their children. It is best for the children if the parents can agree on a plan without the court’s help since they know their children best – schedules, needs, likes, dislikes. It outlines where the children are on certain days and which parent makes major decisions for them pertaining to their health, education and religion. It discusses what to do if one of the parent’s situation changes. The plan should be flexible for all concerned and outline each parent’s responsibilities so the plan can function appropriately. Each parent can have specific responsibilities or they can be rotated. The plan should include a visitation schedule, holidays (Mother’s/Father’s Day), vacations, birthdays, and breaks. Specify a beginning and ending date for each. Make sure you include drop-off and pick-up times and locations. Both parents should have access to their children’s medical and school records, and be able to make emergency medical decisions. The parents should cooperate and respect each other, especially in front of their children. The court will review your plan first, but will most probably agree to it. Changes and Notifications Have a plan to notify the other parent in case there are any changes that take place (i.e. unanticipated business travel, address or telephone number change, employment). If the childcare provider changes, notice to the other parent must be given. The parenting plan must include what to do if one parent moves out of the state, losses his or her job and visitation as the child ages. You must also address any medical or dental procedures that could take place and the child’s college expenses.
Divorce Education Divorce affects over one million children every year. When parents argue all the time, it hurts the children emotionally. It makes children, as well as the parents, feel anger, fear, sadness and regret. When parents stop communicating, the children most likely will experience psychological, self-esteem and social problems. Divorce education classes can help you and your spouse interact with each other positively, especially in front of your children. Some states require the parents to attend these classes. The program explains the impact on family conflict on children. It helps you develop the needs of your children and create new family relationships. The class will help you build a good, solid parenting plan and develop a positive co-parenting skill. Most of all, it will satisfy the child’s best interests and keep them healthy and happy. Classes for Children The class is divided by age so your child can experience what another child his or her age is going through. The children learn how to cope through the divorce process by games and drawings with a trained facilitator. Children learn how to solve current and future problems. Custody/Visitation Dos and Do nots The time you spend with your child should be happy and productive. DO Always try to be on time when you pick up your children or drop them off. This tells your children that visitation is important to you. You do not have to always take your children to a special place like an amusement park; spend some quality time with them at home and listen to what they say. Make sure they have everything they need at your home (i.e. clothes, toiletries) including friends in your neighborhood. Make sure you have activities suitable for your children’s ages. If you have extended family (i.e. grandparents), make sure your children visit them. Respect your former spouse. Notify him or her of travel plans, a new babysitter or a new woman or man friend in your life. Let your former spouse know when you are taking your children somewhere out of the area. DO NOT Do not allow non-child support to be a punishment for your former spouse if it has not been paid. Your children are the only ones who will suffer if they do not see their daddy or mommy. Fighting in front of your children is wrong. Do not make your children feel badly if they enjoy time with the other parent. Be nice to your former spouse in front of your children. Make sure your visitations are scheduled; do not let your children make them. Never ask your children to tell their mother or father something from you and do not ask them to spy on the other parent. Do not get in the middle of an agreement with your child and the other parent. Do not let your children manipulate your visits. Visitation is not optional. Moving out of State You must ask the court if you want to move out of state with your child. The court will look at the effect on the child, if the other parent has concerns, if the other parent will be able to see the child and whether you have sole or joint custody. Custody Modifications If a parent wants to modify a child custody order, he or she must show a substantial change in circumstances. Under the Uniform Child Custody Jurisdiction Act, a modification is considered only in the state where the child lives. Conclusion Child custody reached by both parents is always best for the children. It is in the best interests of the child when both parents cooperate and respect each other. Links to additional information To review the custody criteria in your state, click on the American Bar Associations website at www.abanet.org The U. S. State Department’s Office of Children’s Issues has information on International parental child abduction. Visit the U. S. State Department’s website at http://travel.state.gov The Children’s Rights Council makes sure children have frequent and meaningful contact with both parents. Click on www.crckids.org for more information. If you are a gay or lesbian parent, the Human Rights Campaign can help you fight for custody of your children. Visit them at www.hrc.org The Arizona Supreme Court has put together ideas on how to structure your parenting time. Check them out at http://www.supreme.state.az Child Custody Legal Center sponsored by
Earl Carter & Associates
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