If you’re facing divorce, one of the most complicated issues is child custody. Child custody law is complex and involves not only the children and their parents but also extended family members.
What is Child Custody Law?
Child custody law directs judges as they make decisions about who has the care of any particular child. It covers issues like who the children should live with, how visitation rights should be determined, issues surrounding adopting a child, whether or not the children of a divorce can move out of state or out of the country, and many other factors. Child custody law issues will usually require a person to get legal help.
Frequently Asked Questions
Here are some of the questions people most commonly have about child custody law:
- Won’t I just automatically have custody of my children since I’m a parent? Ordinarily, this would be the case. However, in many divorces, one parent will claim to be a better custodian of the children. There also considerations about what’s best for the children. A judge will expect you to be thoroughly prepared either to prove that the other spouse is not fit to raise the children or to defend your own fitness. It’s also important that you find a lawyer who can help you prepare a case that a judge will see takes into consideration what is best for the children.
- Who is more likely to get custody? The question before the court when considering child custody law is always what will provide the safest and most stable environment for the children in question. This emphasis on stability is important, because it doesn’t just matter who makes more money or who more capable in a fight so as to protect the child from outside dangers. One of the most important considerations is which parent can provide a genuinely stable environment for children to grow and thrive. Historically, mothers have been perceived as being more stable in this respect. However, child custody law and custom are constantly evolving. Some states are now claiming that this assumption that mothers are more likely to provide a stable environment than fathers is actually a violation of the Equal Protection clause. The standard in most cases of child custody law is joint custody.
- What about extended family? It’s often a shock to someone going through a divorce to find out that it is not only a child’s mother and father whom the courts will take into consideration when it comes to child custody. Extended family members, and particularly grandparents, frequently get involved in these disputes. When the safety and stability of a child’s life is at stake, extended family members do have rights and the court does sometimes consider whether an extended family member is a good choice. In some cases, well-established grandparents can provide a more nurturing and stable environment than parents.
- What is the difference between legal custody and physical custody? Legal custody refers to who must be involved when important decisions are made. It is quite possible for one parent to have sole physical custody but both parents to have legal custody. This means the children will live with one parent, but when an important decision is made, such as a medical decision or decision about moving, both parents must agree. When it comes to extended family members, some courts in some states have ruled that grandparents do have visitation rights. Every state is different so it’s important to investigate these laws in your state.
- Can a parent move away with the children? When there is joint legal custody, both parents must agree before one parent can move with the children. If they cannot agree, a court hearing will leave the decision up to a judge. In most cases, if a parent is considering moving they must give a minimum of 30 days notice to the other parent. If the two parents agree on the move, they need to put it in writing so there will be no issues later.
Child custody law is complicated and every state is different. If you are getting a divorce, be sure to get a divorce attorney who can help you make the right decision for you and for your children.
