Introduction to Child Custody
I’ve outlined many points thus far that are important in divorce, but this section will deal with what many people consider the most important aspect of divorce – child custody. If you and your spouse have children together, you probably have a million questions running through your mind. These are just a few of the questions you’re probably asking, and questions that I will answer in this chapter:
- What are my custody options?
- Will I receive child custody?
- What if my spouse is abusive – can I ensure that he or she doesn’t get custody?
- Will I have to pay child support? If so, how much?
- Will I receive visitation rights?
It is important to understand that each divorce is different. Your case will be unique and there is no one answer to these questions. However, I can equip you with the options that you will have and the potential outcomes that you face.
The first thing that you should consider when deciding who will have custody of your child is if you and your spouse can work this issue out on your own, or if you need a judge to decide for you. If you and your spouse are fairly amicable and are on the same page concerning custody, there is no need to begin a custody battle. Custody battles can be stressful and expensive, however, if you and your spouse cannot settle custody issues outside of court, presenting your case and having a judge decide questions of custody might be your only option. If you and your spouse take your custody battle to court, a judge will be in control of your custody situation. A judge will review the facts of your case and determine who should receive what type of custody with your children’s best interest in mind.
Sometimes, in order to protect your child’s interests, a judge will appoint a guardian ad litem for your child. When a custody battle goes to court, both spouses generally hire attorneys to represent their interests. But the question is: who will represent your child’s interests in an unbiased and professional manner? If both parents believe that they should receive sole or primary custody of the child, how will the court determine what the child’s best interests actually are? This is where a guardian ad litem comes in. A guardian ad litem can be appointed to a case by a Judge, or one can be requested by an attorney or parent. Fees are typically charged by the hour and paid for by the parents of the child. Whether a guardian ad litem is appointed or not, a judge will determine the most stable and healthy environment for your child based on the facts presented in court. A court can order sole custody to one parent, primary custody to either parent, or shared physical custody of the minor children.
The two major types of custody are the ones I’ve mentioned above – legal and physical custody. Sometimes people get these types of custody mixed up, so I would like to clarify which is which here. Legal custody refers to a parent’s ability to be involved in making decisions regarding his or her child. If you have legal custody over your child, you can be involved in making medical, educational, religious and other decisions. However, this type of custody has nothing to do with whom your child lives with. Just because you have legal custody of your child does not mean that he or she will automatically reside with you. The type of custody that refers to where your child lives is physical custody. If you receive physical custody, your child will primarily live with you. . In some cases, you might be denied physical custody but given legal custody. This will depend on your personal situation.
Sole custody is full legal and physical custody given to one parent in the event that the other parent is deemed unfit or unable to raise a child by the court. In most cases, such a finding is determined by a history of instability in character or an inability to provide for the child’s needs by one spouse proven to the court by the other spouse. Some examples of ways that a parent can lose custody of his or her child are issues with alcohol or drugs, and violent tendencies. Particularly if a parent has abused his or her child, whether sexually, emotionally, or physically, that parent can be at serious risk for losing custody of his or her child. Furthermore, if one parent endangers the life or well being of their child through erratic behavior or poor decision-making, custody can be revoked. Another way that a parent can lose custody is if he or she abandons or neglects his or her child. In some cases, sole custody is necessary in order to protect a child from one unstable parent. However, in recent years, fewer and fewer custody battles have ended in sole custody rulings. This is because the court recognizes how important it is for a child to have both of his or her parents in his or her life, even if these parents are divorced. When possible, judges will award primary physical custody to one parent with visitation to another, so long as both parents are fit to raise their child. This ensures that the child can maintain relationships with both parents. Sole could refer to sole physical custody, sole legal custody, or both.
For more information on child custody, check the blog next week, or feel free to get your own copy of my ebook here.