Child Custody FAQ

 

Answers to common child custody questions:

QUESTIONS
 
ANSWER
 

What factors do courts take into account when deciding who gets custody of the children?

Almost all courts use a standard that gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends on many factors, including:

  • the child's age, sex, and mental and physical health
  • the parent's mental and physical health
  • the parent's lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
  • the emotional bond between parent and child, as well as the parent's ability to give the child guidance
  • the parent's ability to provide the child with food, shelter, clothing, and medical care
  • the child's established living pattern (school, home, community, religious institution)
  • the quality of the child's education in the current situation
  • the impact on the child of changing the status quo, and
  • the child's preference, if the child is above a certain age (usually about 12).
Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment, and which parent will better foster the child's relationship with the other parent. With younger children, this may mean awarding custody to the parent who hasbeen the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships.

Are courts more likely to award custody to mothers than to fathers?

In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests, without regard to the parent's gender.

As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children's daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.

If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what's best for the children. So if you think that you should have primary custody and that you can persuade the judge that it's in the kids' best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.


Does custody always go to just one parent?

No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes one of three forms:

  • joint physical custody (children spend a substantial amount of time with each parent)
  • joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
  • both joint legal and joint physical custody.

In some states, including New Mexico and New Hampshire, courts are required to award joint custody, except where the children's best interests -- or a parent's health or safety -- would be compromised. Many other states expressly allow courts to order joint custody, even if one parent objects to such an arrangement. For more information, see Types of Child Custody


Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?

In a number of states, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.

As a practical matter, however, lesbian and gay parents -- even in those states -- may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.

If you are involved in a custody case and are concerned about bias against you because you are gay or lesbian, make sure you consult a lawyer about protecting your rights. You can get attorney referrals from the National Center for Lesbian Rights.


Is race ever an issue in custody or visitation decisions?

The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the mother was awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision


Who determines how much visitation is reasonable and fair?

When a court awards physical custody to one parent and "reasonable" visitation to the other, the parent with physical custody is generally in the driver's seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.

Unfortunately, it sometimes translates into little visitation time with the noncustodial parent, resulting in disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children. For more information on visitation rights, see the Child Visitation FAQ. Or, for more about parenting agreements, see Building a ParentingAgreement That Works, by Mimi Lyster (Nolo).


Is mediation the best approach to solving disagreements about child custody?

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute. The mediator does not have power to impose a solution on the parties, but assists them in creating an agreement of their own. (In some courts, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement. If you're concerned about whether the mediation is confidential or whether the mediator will be reporting to the judge, find out how your court does things before you get started.) There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.

  • Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
  • Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
  • Mediation enhances communication between the parents and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

Additional Resources

For more information on mediation, including how mediation or collaborative divorce can help you come to an agreement, see Divorce Without Court: A Guide to Mediation & Collaborative Divorce, by Katherine Stoner (Nolo).

 
Types of Child Custody
 

Learn the difference between legal custody, physical custody, sole custody, and joint custody.

Physical Custody

Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.

Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent.


Legal Custody

Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.

If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement. You won't get fined or go to jail, but it will probably be embarrassing and cause more friction between the two of you -- which may harm the children. What's more, if you're represented by an attorney, it's sure to be expensive.

If you think you have circumstances that make it impossible to share joint legal custody (the other parent won't communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many states, joint legal custody is preferable, so you will have to convince a family court judge that it is not in the best interests of your child.


Sole Custody

One parent can have either sole legal custody or sole physical custody of a child. Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.

However, in most states, courts are moving away from awarding sole custody to one parent and toward enlarging the role a divorced father plays in his children's lives. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.

It's understandable that there may be animosity between you and your ex-spouse. But it's best not to seek sole custody unless the other parent causes direct harm to the children. Even then, courts may simply allow supervised visitation, while still ordering joint legal custody.


Joint Custody

Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:

  • joint legal custody
  • joint physical custody (where the children spend a significant portion of time with each parent), or
  • joint legal and physical custody.

It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.


Joint Custody Arrangements

When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements and the children's needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house or apartment. Other joint physical custody arrangements include:

  • Alternating months, years, or six-month periods, or
  • Spending weekends and holidays with one parent, while spending weekdays with the other.

There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is called "bird's nest custody."


Pros and Cons of Joint Custody

Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent.

There are, of course, disadvantages:

  • Children must be shuttled around.
  • Parental noncooperation or ill will can have seriously negative effects on children.
  • Maintaining two homes for the children can be expensive.

If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.

For more on child custody arrangements, see Building a Parenting Agreement That Works: How to Put Your Kids First When Your Marriage Doesn't Last, by Mimi E. Lyster (Nolo).


Paternity Issues and Child Support

Establishing paternity is a critical step towards collecting child support.

The question "Who is the father?" is not as simple a question as you might think. Different circumstances give rise to different legal rules.


When Paternity Is Agreed On or Presumed

Acknowledged father. An acknowledged father is a biological father of a child born to unmarried parents, for whom paternity has been established by either the admission of the father or the agreement of the parents. An acknowledged father must pay child support.

Presumed father. If any of the following are true, a man is presumed to be the father of a child, unless he or the mother proves otherwise to a court:

  • The man was married to the mother when the child was conceived or born, although some states do not consider a man to be a presumed father if the couple has separated.
  • The man attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the "marriage."
  • The man married the mother after the birth and agreed either to have his name on the birth certificate or to support the child.
  • The man welcomed the child into his home and openly held the child out as his own.

In some states, any of these presumptions of paternity is considered conclusive, which means it cannot be disproven, even with contradictory blood tests. In Michael H. v. Gerald D., 491 U.S. 110 (1989), the U.S. Supreme Court upheld California's presumed father statute as a rational method of protecting the integrity of the family against challenges based on the due process rights of the father and the child.

A presumed father must pay child support.

Equitable parent. In Michigan ( Atkinson v. Atkinson, 408 N.W.2d 516 (1987)) and Wisconsin (In re Paternity of D.L.H., 419 N.W.2d 283 (1987)), a spouse who is not a legal parent (biological or adoptive) may be granted custody or visitation under the notion of equitable parent. Courts apply this concept when a spouse and child have a close relationship and consider themselves parent and child or where the biological parent encouraged this relationship. If the court grants an equitable parent custody or visitation, then the parent will also be required to pay child support.

Alleged father. An unmarried man who impregnates a woman is often referred to as an alleged father, or sometimes simply as an unwed father. An alleged or unwed father will be required to pay child support if a court determines or he acknowledges that he's the father; in addition, an alleged or unwed father has the right to visitation with his child and may seek custody.

Stepfather. A stepfather is the spouse of a legal mother and is not also the biological father of the woman's children. A stepfather is not obligated to support the children of the woman to whom he is married unless he legally adopts the children.

Paternity Actions

A paternity action, a court suit filed to have a man declared the father of a child, can be brought by either the mother or the father. Paternity actions are sometimes called establishment hearings, filiation hearings, or parentage actions. Most paternity actions are initiated by welfare officials who provide TANF (Temporary Aid to Needy Families) to the mother and are required by law to seek reimbursement from the father. The mother must cooperate in these proceedings; failure to do so can result in a reduction or loss of her TANF grant.

Today, blood and DNA tests can affirmatively determine paternity with a 99.99% accuracy and can rule out paternity with 100% accuracy.

If paternity is established following a paternity action, the court will order the father to pay child support and grant him custody or visitation rights.


Temporary Orders in Family Court: Quick Decisions on Support and Custody

What kind of temporary orders you can get in family court, and how.

Typical lawsuits take months, if not years, to make it to court. But if you're getting divorced and need a quick decision from a judge about who gets the kids, the car, the money in the bank accounts, or the house for now -- or if you need money for support right away -- obviously you can't wait that long. You need a temporary order. When couples separate, important issues are often resolved (at least temporarily) in a short hearing before a judge. Even though these quick hearings are less formal than standard court hearings, their brevity means that you must be prepared and know exactly what you want. You may have only a few minutes to ask for it.

What Temporary Orders Are For

Let's say a couple is divorcing: the husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.

Spouses can ask a court to temporarily:

  • restrain a spouse from coming near or contacting the other (or force a spouse to move out of the family home)
  • establish child custody and visiting arrangements
  • provide for spousal support (alimony) and/or child support payments
  • order either spouse not to sell valuable assets, and
  • give possession of the family home or car to one of the spouses.

Temporary orders are usually valid until the court holds another hearing or the spouses arrive at their own settlement through negotiation or mediation.

When to Ask for a Temporary Order

When one divorcing spouse moves out of the house, you have two options: reach an agreement about how you'll share expenses and about child custody and support, or go to court and ask a judge to decide. If you and your spouse are able to agree, you can write up a temporary agreement and go on to try to resolve the rest of the issues in your divorce. If you and your spouse can't agree, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.

This accomplishes two things. First, you will be awarded the proper amount of child support and the court will acknowledge that you live with the children -- often granting you physical custody right off the bat. Second, your spouse cannot successfully claim that the children were kidnapped. This may sound extreme and unlike your future ex-spouse, but some people behave uncharacteristically when they are under duress and feeling threatened. And, if your future ex-spouse raises such a claim, the police or judge are usually obligated to hear her or him out. However, when you can show proof that you filed for custody and child support, the court will most likely dismiss a kidnapping claim.

How to Ask for a Temporary Order

To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available for free from the court or online. Some courts have self-help law centers for family law cases, with forms and instructions for people representing themselves, and sometimes even employees who can help you with your forms.

Here's what you'll probably need:

  • A request for the court order you want. In some states, the forms you need are called an Application for Order to Show Cause (OSC) and an Order to Show Cause. An Order to Show Cause is a simple, fill-in-the-boxes legal form or short typed legal document that sets out what you are asking for -- such as a temporary child support order. It orders your spouse to come to court at a specific date and time and explain ("show cause") why the court should not grant your request.
  • A supporting declaration. This is a written statement, under penalty of perjury, setting out facts that legally justify the issuance of the temporary order -- for example, the need for money to support your children. You can also submit declarations of other people who have first-hand knowledge of the facts.
  • A proposed temporary order granting you the relief requested. This order will be signed by the family court judge if the judge grants your request.
  • A proof of service. This is a document that proves to the court that the papers have been properly delivered to your spouse. Check for instructions that come with the proof of service form; if there aren't any, you can check your own state's law about serving papers.

In some courts, you won't be allowed to file papers asking for a short hearing unless you've already filed for divorce. You can do both at the same time; it just means filling out more forms so that you can get your divorce started at the same time that you ask for temporary orders.

What to Expect at the Hearing

Your next step is to attend the court hearing where the judge will consider your request. In emergencies, the hearing can be held within a few days, but more often, it will be a few weeks.

The hearing may be held in a courtroom or just in the judge's office or "chambers". The judge may listen to a few minutes of testimony from you, your spouse, and possibly other witnesses. Or the judge may only accept written evidence.

To support a request for temporary child support, you will probably need to produce copies of an income and expense budget -- or you may have had to fill out income and expense forms before you even filed the request -- and the judge will review them. The judge will:

  • review the details of the requests and the underlying facts
  • possibly ask you some questions
  • ask your spouse, if present, for his or her side of the story, and
  • in child support cases, refer to state guidelines on recommended support, looking at factors such as each spouse's income and who has primary custody of the kids.

Often, this kind of hearing takes less than 20 minutes. At its conclusion, the judge will likely make an immediate ruling, usually either issuing the temporary order you requested or modifying it somewhat. The order will stay in effect only until the divorce is finally settled, either through a trial or when you and your spouse reach an agreement.

However, if the judge finds more information is needed, or finds that your spouse wasn't given the proper notice before the hearing, the judge may issue an order that is effective only until another hearing can be held


How Can I Change a Child Support Order?

When and how to ask a court to change the amount of child support you must pay, or the amount you receive.

Many people these days are having trouble either making child support payments or caring for their children on their existing child support because of a change in their work or living situation. If you are paying or receiving child support, there may come a time when you feel the existing support order should be changed. How can you go about making that happen?

Parents Can Agree to Modify the Support

Your first step should be to see whether you and the other parent can reach agreement to modify the child support terms. If you can, you can just ask a judge to approve the change -- that shouldn't be a problem unless the amount you agree to is way below your state's guidelines. In that case you'll need to explain why the agreement is justified and how the amount agreed to will provide adequately for the children's support.

You Can Ask a Court to Modify the Support

If you and your ex can't agree on a change, you'll need to ask for a court hearing in which each of you can argue for the amount you think is appropriate. As a general rule, in order to get a modification you must be able to show that something about your circumstances has changed since the court made the existing order. Depending on the nature of the changed circumstances, the court may make either a temporary or a permanent modification. Examples of the types of changes that support temporary modification orders include:

  • a child's medical emergency
  • the payer's temporary inability to pay (for instance, because of illness or a temporary additional financial burden such as a medical emergency), or
  • temporary financial or medical hardship on the part of the recipient parent.

A permanent modification may be awarded if:

  • either parent loses a job or changes to a new job with significantly different income
  • either parent remarries and the new spouse's income increases the household income significantly
  • the cost of living increases
  • either parent becomes disabled
  • the child's needs change significantly, or
  • child support laws change.

A permanent modification of a child support order will remain in effect until support is no longer required or the order is modified at a later time because of a new set of changed circumstances.

Don't Delay!

If you're the paying spouse and you are unable to pay your support because you've lost your job or your income has dropped significantly, make sure you take steps right away to get the support amount changed. Any support payments that you don't make become what's called "arrears," and there's no way to make them go away other than paying them. They can't be discharged in bankruptcy, and they can't be reduced by a judge retroactively. If your ex won't agree quickly to a change, then you should immediately file a motion with the court. And if your ex does agree, get it in writing and have a judge approve it. If you don't, and your ex later has a change of heart, the original support order will apply and you'll be on the hook for whatever you didn't pay.

Providing for Ups and Downs in the Cost of Living

Some child support orders include a COLA clause, which provides that payments are to increase annually at a rate equal to the annual cost of living increase, as determined by an economic indicator (such as the Consumer Price Index). This eliminates the need for modification requests based solely on cost of living increases. If your child support order does not include a COLA clause, it may be a good idea to add one now

 
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