How Do Courts Determine Who Gets Custody?

By February 12, 2019Blog
How Do Courts Determine Who Gets Custody

Parents who are going through a divorce often feel stress over whether they will be able to get custody of their child. They might be concerned that any mistakes they’ve made in the past or a vindictive ex will make it impossible for them to have a good relationship with their child. Those who have an abusive ex might be worried that they will lose custody and that their child will be in danger. These are all valid concerns. Read on to learn about how the court determines who will get custody.

 

Why Both Parents Are Important

Most family court judges care about children and understand that, when possible, it is beneficial for a child to have both parents in his or her life. Studies have shown that children with loving, involved fathers in their lives do better in school, with relationships, and in their adult lives than those who are not in contact with their fathers.

This is one reason why the trends of the last century, which were largely skewed toward keeping children with their mothers, have changed in more recent years. In most cases where both parents are fit and loving, both parents are awarded joint custody of their children. There are exceptions, of course, and we will cover some of those below.

 

Different Types of Custody Agreements

There are several different types of custody agreements. What many divorcing couples want is a joint custody agreement. In most cases, this will refer to both legal and physical custody. Joint legal custody means that both parents can make decisions for their child. They can decide together which school the child will go to and which religion, if any, the child will be brought up with. It also means that both parents can take the child to the doctor and both can access medical and educational records.

Physical custody refers to where the child lives. When there is joint physical custody, the child might or might not live with each parent exactly half of the time. While this might be the ideal or the goal, sometimes it isn’t possible. For example, if one parent lives near the school and the other lives in a town 30 miles away, it isn’t feasible for the child to spend school nights with the parent living far away from the school. For the most part, though, a somewhat equitable division of time with each parent is usually sought when both parents have joint physical custody.

Sole custody can also refer to either legal or physical custody. This is when one parent has custody and the other does not. There are several reasons that one parent might have sole custody. In some cases, the noncustodial parent will have visitation privileges; sometimes, those visits will be unsupervised and sometimes they will be supervised.

 

Reasons One Parent Might Lose Custody

There are a variety of reasons that joint custody might not be an option. In some cases, the sole custody order might be temporary, while in others, it might be the way things will be until the child reaches the age of majority. Here are some reasons that joint custody might be denied:

  • Abandonment. If one parent left the child and the other parent and had no interest in maintaining the relationship, they might lose custody of the child. This can happen when a parent walks away before the baby is born, when the child is an infant, or later in the child’s life.
  • Child abuse. An abusive parent can do just as much or more harm than an absent parent. If a child is not safe with one parent or the other, usually that parent will lose custody.
  • Child neglect. Again, this is about child safety. If the parent cannot provide adequate supervision, food, clothing, and shelter, they will usually not get custody of the child. This can sometimes change over time. For example, a parent might temporarily lose custody if they become homeless but, upon securing a safe place to live, can regain custody.
  • Domestic violence. If one parent is violent or abusive toward the other, this can result in a loss of custody, even if there was never any abuse of the child. Keep in mind that a child seeing or hearing one parent abuse the other is being exposed to emotional trauma, which is a form of child abuse.
  • Drug abuse or addiction. A parent struggling with an addiction to a substance who is not able to get through rehabilitation and onto the process of recovery risks losing custody of his or her child.
  • Incarceration. Of course, a parent who is incarcerated cannot have physical custody of the child. In some cases, parental rights may be terminated.
  • Untreated mental illness. If one parent has severe mental illness that they cannot or will not get treatment for, it is likely that they will lose custody until and unless they can have their illness managed so they can keep their child safe.

 

How Non-Custodial Visitation Works

If you do not have custody of your child, you might still have visitation rights. This is when you are able to see your child a certain number of days each week or month, even if they are not living with you. The details will depend on whether your visitation is supervised or unsupervised, as well as where you live in relation to your child, your work schedule, and so on.

If you have supervised visitation, it will generally take place in a facility that is designed for these visits. A social worker will usually be the one supervising your visits with your child. In some cases, you might be allowed to take the child to your home or to another location as long as there is another adult there to supervise.

Unsupervised visitation might take place every other weekend, one weeknight per week, one weekend per month, two weeks in the summer, or some other time. If you live far from your child, you will probably see him or her for one or two longer spans over the summer and/or during school breaks. If you live nearby, you might see the child more often.

Contact National Family Solutions if you are going through a separation or divorce. We can help you understand your options and help you get the fairest custody arrangement for your child.

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