When going through a divorce or separation, a parent’s top priority is often where their child will live. In many cases, both parents want custody of their child. While, in general, the information on how to get physical or legal custody of a child is the same in all states, some specifics depend on the state you’re in. For example, some states will consider a child’s wishes beginning at a certain age, and in some states, the language used to explain custody issues is different. Here is a rundown of some of the laws that affect parents in various forms. As always, if you have questions about child custody laws regarding your specific circumstances, you should consult with a legal advocate.
What Does the Child’s Best Interest Mean Under Child Custody Laws?
In all states, the best interest of the child is the top priority. What that “best interest” is, however, can vary from state to state. In general, the child’s needs are always going to come before the wants of the parent. For example, if one parent really wants to have custody of their child but cannot provide shelter for the child, the child’s need for safe housing will almost always supersede the parent’s wishes.
In this case, the child will likely spend most of their time with the other parent (if the parent has access to a suitable shelter). Most of the time, however, things are not as clear-cut. For example, the child’s need to be educated is not arguable, but parents might disagree about where they should go to school (and therefore live). In this case, a judge might need to decide the child’s best interest if the parents cannot agree. This might entail the judge awarding legal custody (or tiebreaking privileges) to one parent over the other rather than the judge simply picking out the school.
States Where Children Have Input
In most states, judges will consider the input of children of a certain age in determining where the child will live. There are a few exceptions, and these are Massachusetts and Oregon. In these two states, the children’s wishes are not usually considered. Some states have specific rules or guidelines about whether a child can or will have input. Be aware that in all states, a child wanting to live with a parent will not necessarily make it so; the judge will still use his or her best judgment to determine whether that placement is in the child’s best interest.
If the child wants to live with a neglectful parent or has an active and untreated drug addiction, the judge will not grant that wish. On the other hand, if most factors are equal, then a child’s preference might be the tipping point. In Georgia, Illinois, and New Mexico, children generally can tell the court where they want to live at the age of 14. In New Mexico specifically, a younger child can also talk to the judge about their preferences, but they will be considered more at age 14.
In Maryland, the child’s age has a significant impact on the decision is 16, and in Indiana, it is age 11. In Minnesota, the judge can decide that the child is mature enough at any age, depending on the circumstances and the child in question. New Hampshire judges rely on a wide range of factors, including the child’s wishes at any age, and in South Dakota, any child who the courts deem as “old enough” can make their wishes known. If you are in a different state, the answer might depend on the judge, and there are no clear-cut rules about what age the child has more of an impact on this decision.
The Language of Child Custody Laws
If you are talking to anyone in any state, they will know what you mean when you say, “child custody.” In some states, however, the legal system uses different language to describe what is happening. For example, many states use the term “parenting plan” or “parenting.” In California and Washington, for example, custody is called a parenting plan. In Colorado, it is called parental responsibilities, and in Vermont, parental rights and responsibilities.
In Montana, custody is called parenting. And in Maine, both parents are considered joint natural guardians. For the most part, the overriding theme is the same as in every other state: The decisions about where the child should live can be made between the parents, but if they cannot or will not do so, or if the agreement is not in the best interest of the child, then a judge can overrule it. In all states, parents can work together on their own parenting plans, which might or might not be upheld by the court.
In some states, like Texas and Vermont, parents are expected to develop their own solutions, but a judge will step in and decide for them if they cannot. And in Tennessee, parents are required to submit their custody preferences in writing to explain why their plan is in the child’s best interest. Figuring out where children should live and which parent should be responsible for making various legal decisions for their children can be difficult.
In an ideal world, parents would develop the child’s best parenting plan and suitable for each parent. This is not always possible; sometimes, parents cannot get along at all. There are issues like domestic abuse, abandonment, or substance addiction muddying the waters in other cases. In these cases, it is always best to consult with a legal advocate of some type. National Family Solutions can help families in any state navigate the court system to pursue the best outcome possible for their child. Contact us to find out more.