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Who Gets to Keep the Kids in a Divorce?

By November 29, 2018Blog
Who Keeps The Kids In Divorce

If you are going through a divorce and you have a child, you might be concerned about who will get to keep the child or who will get custody. The answer varies from situation to situation, and the decision will be made based on the best interest of the child. There are many circumstances to consider when deciding who will have custody of the child after a divorce. Here are some of the factors that will be considered when making this determination.

 

The Best Interest of the Child

Marriages, divorces, and parents are all unique. There is no blanket statement to the question of who will keep the child after a divorce because every circumstance varies. Instead, the decision will be made based on the child’s best interest. This means that if the parents can’t come to an agreement, a judge will have to decide what is best for the child and for the family. In some cases, parent evaluations will be done by a guardian ad litem, or GAL. A GAL is a professional or a trained volunteer who will meet with both you and your spouse, as well as with your child. They will make their best recommendations to the judge in your case.

 

Providing for the Child

Another factor that will be taken into consideration is who can provide for the child. Whoever keeps the child for any length of time is going to need to be able to provide a safe home, nutritious foods, and utilities like electricity and running water. They will also need to provide supervision and age-appropriate interaction. If one parent is unable or unwilling to provide these tangible and intangible things, they should not have custody of the child.

This doesn’t mean that either parent needs to be wealthy. In fact, many parents have low incomes. In some cases, child support might be the answer; if one spouse makes significantly more than the other, they might be ordered to pay money each week or month to the spouse that makes less money. This is the case particularly when one parent stayed home to care for the child while the other worked. There are also social programs that can help when one or both parents are unable to provide for their child’s physical needs. For example, one or both parents might qualify for food assistance, WIC, or some other program.

 

Abuse, Addiction, and Other Issues

In some cases, there are extenuating circumstances that make it difficult for a parent to gain custody of their child. If there is child abuse in a family, for example, the abusive parent will often need to have supervised visitation or, in some cases, no visitation at all. They will generally not get joint physical or legal custody of the child.

A drug or alcohol addiction is another issue that can cause a parent to lose or not get custody of their child. If the addiction is brought under control, they might be able to regain custody or visitation, but it will take some time.

Severe, untreated mental illness can also be a factor. Again, if the issue is addressed and effectively treated (which might not be possible in all cases), the decision can change in the future. If a parent is found unfit due to a mental disability or illness, they might be awarded supervised visitation.

There might be other extenuating circumstances that affect your case. If you are concerned about your situation, a lawyer, a mediator, or a legal resource group like National Family Solutions can help you determine what you need to do to act in the best interest of your child.

 

How Joint Custody Works

In many cases, joint legal and physical custody is awarded. This means that both parents have an equal say in how the child is raised. Legal custody means that the parent can decide where the child goes to school, can take the child to routine and non-routine medical appointments, and can decide what religion to raise the child with (if any). When both parents have joint legal custody, sometimes one parent will be the tie-breaker with one or more of these decisions. For example, a judge might decide that the mother can be the tie-breaker when it comes to religion and education and that the father can be the tie-breaker when it comes to medical issues. For the most part, however, both parents are expected to have input.

Joint physical custody means that the child will live with both parents and will spend time at both of their houses. Sometimes it is roughly equal; other times it is not. For example, if the parents both live in the same town and are within a few minutes of the child’s school, it is reasonable that the child might spend equal (or roughly equal) amounts of time with each parent. If one lives an hour away from the school, however, that is probably not reasonable or feasible. In that case, the parent living farther away might have the child on weekends or during school breaks.

 

How Sole Custody Works

If a parent is awarded sole legal custody, that means the parent will be able to make all decisions regarding the child’s care. They can choose the school, they are the only parent allowed to request a parent/teacher meeting, and they are the only one allowed to consent to non-emergency medical or dental care. They might ask for the other parent’s thoughts on these matters, but legally, they are the one allowed to make the final call in all matters.

Sole physical custody means that the child will live with that parent. They might or might not have visitation with the other parent, and if they do, that visitation might or might not be supervised. In most cases, it is in the child’s best interest to have a relationship with both parents, so it is unusual for a noncustodial parent to have no visitation with the child whatsoever, but that could be the case in some situations.

If you have questions about custody or visitation as you go through your divorce process, contact National Family Solutions to find out if we can help you navigate your case.

 

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