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.
The most common forms of custody are sole custody, which gives one parent authority to make all decisions, and joint custody, which often refers to parental sharing of major decisions concerning child rearing. Legal custody refers to the authority of one or both parents to make decisions as to the child’s health, education, welfare and other interests. Physical custody describes the physical residence of the child. For example, one parent may have sole physical custody while the parents have joint legal custody. Regardless of the custody label, parents have great latitude to determine a custody arrangement by entering into a written custody
WHAT IS AN ORDER OF CUSTODY?
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.
WHO MAY FILE A PETITION FOR AN ORDER OF CUSTODY?
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.
By: Kye Duncan
Takeaway: While states differ in the way they approach arranging child custody, the best interest of the child is always viewed as the priority.
Child custody is a very emotional and sensitive issue. In most cases, although not all, child custody battles are a result of divorce. The parents are dealing with the breakup of their marriage at the same time as they are fighting for the right to have custody of their child. This can create a bitter situation.