Child Custody Law

By: LawInfo

Courts are often required to determine where children will live when parents separate or divorce. Child custody laws help to guide judges when making these crucial decisions. Determining which parent gets custody can affect child support and other financial obligations. Family law attorneys with child custody experience can help clients negotiate a parenting arrangement or at court proceedings.

Legal & Physical Custody

There typically are two types of child custody: legal custody and physical custody.

Legal custody applies to the ability of the parent or parents to make important decisions on behalf of their children, such as choices pertaining to their education, religion, extracurricular activities and health care. Unless one parent has been found to be abusive or otherwise unfit, courts will often award this right to both parents, and it is termed joint legal custody.

Physical custody, meanwhile, is more often the cause of a custody dispute. This term has to do with whom the children will reside and the amount of time each parent will have with the child. When one parent is awarded sole physical custody, this means that the child resides with them and spends most of the time with that parent. Joint physical custody is another route, in which both parents have an allotted amount of time with the children. The amount of time will not necessarily be equal.

Many states allow parents to come up with a parenting arrangement on their own. If the parents agree on such a plan, the court can issue an order that incorporates this agreement. If parents can't agree on child custody, the court may hear arguments from the parents and lawyers to determine the amount of time each parent should have with the child.

Determining Child Custody

If the court has to determine child custody, it will in most cases apply the standard of the "best interests of the child." This standard assesses both parents and the child in order to determine if there are factors that would make it preferable for a child to spend more time with one parent over the other. 

A court may evaluate the child's age, gender, current living situation and child care arrangements. It may also evaluate the age, health, lifestyle and stability of each parent. The court might consider the parent's work schedule and ability to provide for the child's basic necessities. It might also consider the relationship between the child and each parent. Some states will allow courts to take into account the expressed preferences of children who have reached a specified age.

Normally, one particular factor is not enough to come to a decision. However, the judge may give more weight to one factor over others, depending on circumstances or the child's age.

Child Custody Evaluations

Many family law courts will order a child custody evaluation to be conducted by an objective third party appointed by the court. As part of the evaluation, an objective party will usually interview each parent with and without the children. If other people are residing in the home, they may also be interviewed. The evaluator may also interview other individuals who have ongoing contact with the child, such as extended family, teachers, counselors and doctors.

The child custody evaluator may also ask for additional information and documents. All of this work is completed in order for the evaluator to make an independent decision regarding what is in the best interests of the child. The judge may give great weight to the opinion of the child custody evaluator, so many individuals who go through this process choose to retain the services of a child custody lawyer. Attorneys can provide advice on what to discuss during the evaluation process and what information to make available to the evaluator.

Role of the Child Custody Lawyer

A child custody lawyer may fulfill a number of roles when a client is going through a family law dispute. Legal counsel can help gather information to support the client's contentions and respond to legal papers and motions in order to preserve the client's rights. Child custody attorneys also advise clients on the proper ways to conduct themselves during court proceedings and throughout the entire process.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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