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5 Things You Should Know About Child Custody

December 31, 1969
Man on the floor sitting with baby

Child Custody

Ending a relationship is difficult, particularly when there are children involved. There are many questions come up when child custody is at stake – let us explain some of the key things you’ll need to know.
 

Do married parents have equal parental rights?

The biggest concern of separating couples with children, after the welfare of their kids, is maintaining parental rights. Fortunately, married couples maintain equal parental rights over their children unless a family court orders otherwise.

In most cases, parents separate for a time before filing for divorce. During this period, either parent can file a petition with the courts asking to be assigned as the custodial parent, with the other as a non-custodial with visiting rights. As with all things in a divorce, the parents should put their own grievances aside and make such decisions with the best interest of the children in mind. 
 

Who is more likely to get custody?

The court’s main consideration in determining custody will be what is in the best interest of the child. Courts evaluate factors such as the parents’ wishes and which parent can provide a safe and stable environment for their child or children, something that might be a point of disagreement between the parents themselves.

Questions of which parent is granted custody have changed over the years to reflect more modern thinking. Under the “tender years” doctrine, it was accepted that children aged four and younger needed to be with their mothers, who were thus granted custody as a matter of course; now, thinking about parenting has shifted such that the doctrine has been largely dismissed in favor of a more considered approach, and joint custody legislation is the standard arrangement.     
 

What's the difference between legal and physical custody?

As the name suggests, physical custody is a determination as to which parent the child lives with and who has control over the child. The other parent still retains visitation rights except in cases where the court deems it against the best interest of the child.

And while the first consideration of parents in a custody battle is where their child will be staying — or more accurately, with whom — there’s also a legal aspect to child custody that has to be resolved as well. 

Joint legal custody is an arrangement where parents share responsibility for the major decisions regarding their child; it’s an arrangement that has no bearing on physical custody
 

What should I know about visitation rights?

For the parent not granted physical custody, visitation rights are an important consideration in the remaining legal process. While visitation rights are almost always granted to the non-custodial parent, there are circumstances in which the court will prohibit visitation as against the best interest of the child. Cases of emotional or physical abuse are grounds for the denial of visitation, as are instances of unfitness or inability to care for the child. A parent’s living situation and financial status may also play a factor in a decision to restrict or deny visitation.

 

What are my rights as a father?

The rights of fathers can be a contentious topic in conversations on divorce, as many divorced dads have felt disregarded in custody cases based upon long-held beliefs on the roles of mothers as primary caregivers and nurturers of children. And while upending such long-held assumptions takes time, courts are now giving greater consideration to the parenting and support offered by fathers in the lives of their children. Fathers maintain such rights as the courts grant them and should speak with a family lawyer in the event that those rights are violated.  
 

What is a parenting plan?

Parenting plans are predetermined visitation schedules negotiated by the parents that can be submitted to the court ahead of a custody decision; if the court approves the plan, it can be incorporated into the custody order.   

 

What happens in the case of remarriage

Figuring out the dynamics of a new, blended family is as much about managing feelings and emotions as it is about legal questions. That said, once you navigate the transition into a new family dynamic, there is the possibility that the existing custody agreement might change as well.   

Remarriage doesn’t necessitate any changes in custody status, but new considerations can arise as circumstances change. Parents can seek to change their custody arrangement with a material change to their situation, namely with the addition of a new spouse. The relationship between a child and their new stepparent can also create a situation that requires a change in custody or visitation, as the new parent can either be a source of conflict or a stabilizing influence in the home. Remarriage can also mean the possibility of relocation, something that might require the courts to decide on before a child is moved too far from the other parent.      
 

Bottom Line

If you are trying to obtain custody of your children, you will need a local attorney to assist you with this process. An attorney will prevent you from running into legal issues that could impact your custody bid and help you build your strongest case.

Child custody is never easy, learn how a LegalShield membership can help.
 

This is not intended to be legal advice. Please contact a professional for further information.