By: Undisputed Legal/Family Court Process Service Department
The general test in determining custody in a contest between parents, is the best interest and welfare of the child. Court decisions set forth several factors which are to be considered in determining best interests. These factors are as follows:
(1) The parent who has been the primary caretaker;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each
(5) The ability of each parent to provide for the child’s emotional and
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been
Most states declare a specific policy favoring an ongoing, healthy relationship between the child and both parents. If one parent is trying to undermine the child’s relationship with the other parent, that is a negative factor against the parent who is trying to hurt the relationship. If other factors are close to equal, acourt may grant custody to the who is more likely to encouragean open and good relationship with the other parent
Similarly, if a custodial parent regularly interferes with visitation, that is a negative factor against the custodial parent and can lead to modification of custody to the noncustodial parent (assuming the noncustodial parent is able to properly care for the child).
The impact of a parent’s homosexual relationships on custody decisions varies dramatically from state to state. Courts in many states
are more willing to assume harmful impact to a child from a parent’s homosexual relationship than from a heterosexual relationship. On the other hand, some states treat homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor unless specific harm to the child is shown.Continue reading
The wishes of a child can be an important factor in deciding custody. The weight a court gives the child’s wishes will depend on the child’s age, maturity, and quality of reasons. Some judges do not even listen to the preferences of a child under the age of seven and instead assume the child is too young to express an illformed preference.
A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child’s reasons. If a child wants to be with the parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached also may not have his or her preferences followed.
On the other hand, if a child expresses a good reason related to the child’s best interest-such as genuinely feeling closer to one parent than the other the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteenhas an “absolute right” to choose the parent withwhom the child will live, as long as the parent is fit.
Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.
There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.
In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother is fit.
Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.
In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent. The other parent generally is referred to as the noncustodial parent. The noncustodial parent almost always has a right of visitation a right to be with the child, including for overnight visits and vacation periods.
In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child.
A question often arises on the effect of joint custody on child support. The effect of joint custody will depend on the nature of the joint custody arrangement. If the parents have joint legal custody(by which they share making major decisions regarding the child), that by itself will have little effect on child support. If the parents have only joint legal custody, one parent still has primary custody of the child and handles payment of most of the child’s day-to-day expenses. The custodial parent’s expenses for the child have not been reduced by the joint custody arrangement.
If the parents have joint physicalcustody, with the child spending a substantial amount of time with each parent, and if the parents have approximately equal incomes, it is possible neither parent will have to pay support to the other. The father and mother will pay the child’s day-to-day expenses when the child is in their respective homes. The parents, however, will need to coordinate payments on major expenses such as camp, school, clothing, and insurance.
The laws relating to custody emphasize the best interest of the children. Both natural and adoptive parents may not ordinarily be denied custody unless there is gross parental unfitness.
There are numerous factors considered by the court in making custody and visitation determinations. Such factors include age, physical, mental and emotional health of the child or parent, and the quality of the home environment, including continuity, stability and security in the child’s home. Other factors that are considered include the primary caretaker status of a parent (which may not necessarily override other factors), whether a parent has made unfounded allegations of abuse, and the recognition (or lack thereof) of the importance that a child have a relationship with the non-custodial parent (alienation). Custody is not awarded after a child has attained the age of eighteen. (Note, however, that the statutory “cut-off” for child support, absent other agreement of the parents, is twenty-one years of age). When custody is contested, the court may appoint an “attorney for the child” (formerly called a “law guardian”) to represent the child(ren). This person is a lawyer who will interview the children (if age appropriate) and represent the child(ren)’s wishes to the court. If the child is of a young age this person is required to make a recommendation to the court concerning the custody arrangement.
An order of custody gives responsibility for the child’s care, control, and maintenance to one or both of the child’s parents or to another party. The court may not decide issues of custody and visitation if the child is 18 years or older.
A person who has an interest in a child’s well-being and has some connection or relationship with the child may file a petition in the Family Court requesting that the court place the child in his or her custody. The petition should be filed in the county in which the child resides, so long as the child as been residing in the state for the past six (6) months. A copy of the petition and a summons must be delivered personally to (served on) the person or parties who have custody of the child. If the child’s parents are separated and one parent seeks a custody order, that parent must have the papers served on the other parent. If a non-parent is seeking custody of the child, then both the child’s parents must be served.
Chances are, we all know someone who is divorced — probably several someones. In 2000, there were over 957,200 finalized divorces in the United States. The U.S. Census Bureau says that 50 percent of all marriages entered into today will end in divorce. That’s a lot of broken homes, heartaches and paperwork, not to mention money spent on attorney fees and court costs.
But, some say those percentages of future doomed marriages have to be interpreted based on other factors. Barbara Whitehead and David Popenoe’s “The State of Our Unions” (2004), which was prepared at Rutgers University for the National Marriage Project, says that there are several important social factors that affect that 50 percent estimate. For example, your risk of divorce decreases by: Continue reading