Who Gets Custody of the Child(ren)?

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There are many factors involved when making child custody decisions. When determining the home in which to place the child, the court strives to reach a decision in “the best interests of the child.”  Judges typically focus on the viewpoint from the child as opposed to what the parents want. Each child custody case is unique and different.  However, there are some key factors which are always taken into consideration.  They include:

  1. The Parent Child Relationship
  2. Lifestyle and Conduct of the Parents
  3. The Parents Mental and Physical Health
  4. The Parents Ability to Provide for the Child
  5. Continuity with the Primary Caregiver
  6. The Child’s Established Pattern (home, school, religion)
  7. The Preference of the Child
  8. Child’s age, gender and Mental and Physical Health

If none of these factors clearly favor one parent over the other, the court will focus on which parent can provide a stable environment for the children.  When younger children are involved, custody is usually awarded to the parent who has been the child’s primary caregiver. 

Mothers vs. Fathers – Who is More Likely to Get Custody?

Most states provide that custody of children ages five or under be awarded to the biological mother when the parents separate or divorce.  In some states this is commonly known as the “tender years” doctrine.  Most states have eliminated this presumption as it violates the equal protection clause of the Fourteenth Amendment to the U.S. Constitution as it discriminates on the basis of sex.  The law does not require that a child be awarded to the mother without regard to the fitness of both parents.  Many divorcing parents agree that the mother will have custody following a separation or divorce and that the father will have reasonable visitation.  This may happen when fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.  However, the rights of fathers has increased and changed for the better over time.  Today, custody laws give fathers some say in their children’s lives after divorce.  The father may not be awarded primary custody, be he will be given a more generous visitation arrangement than in the past.  This is due in large part to the efforts of father’s rights organizations and in research studies that have shown that a father’s relationship with his children has proved that the lack of a father has led to juvenile problems, drug use and clinical depression.

Unmarried Parents and Custody Decisions

If a child’s parents were never married, most states provide that the child’s biological mother has sole physical custody unless the biological father petitions the court for custody.  He must prove to the court through a paternity test that he is the biological father unless there is no question of paternity.  Both parents may be listed on the birth certificate.   A parent who is not listed can be added after the birth of a child if the parent contacts the state Bureau of Vital Statistics in which the birth took place.  Most states require unmarried fathers to sign an affidavit or acknowledgment of paternity.   It’s generally a good idea to settle the paternity issue early in the child’s life to avoid complications later.  Parents are responsible for supporting their children until age 18, unless the child is declared emancipated before then.  Support includes food, clothing, shelter, education and healthcare.

An unwed father usually cannot win custody from a mother who is considered a good parent.  However, he has priority over other relatives, foster parents, or strangers who want to adopt the child if such a situation arises.

When Parents Move Out of the Home

If a parent must leave the family home and wishes to be the primary physical custodian, the moving parent should take the children with him or her.  They should immediately file for temporary custody and child support in family court.  If this process is delayed, the other parent may go to court first and allege that the kids were taken without that parent’s consent.  Generally, family court judges do not look kindly on a parent who removes the children from the home before seeking the court’s recognition.

Can a Non-Parent Get Custody?

An adult who wishes to gain custody of a child who is not their birth parent faces an uphill battle.  However, it is possible if the person can demonstrate that they are psychologically considered the child’s guardian or the biological parents are deemed unfit.  Both of these hurdles are difficult to overcome.  Even when these conditions are met, the non-parent custody must be proven to be in the child’s best interests.  Two options for establishing authority over a child include “Guardianship” and “Non-Parent Custody” also referred to as “in loco parentis custody”.  Consent guardianship allows the parents to give legal authority of a child to a non-parent through their written consent.  A non-parent can file a petition for child custody.

The Non-Parental Custody Petition

Most states have specific procedures that must be followed by people seeking non-parental custody.  A child custody proceeding may be commenced by a person other than a legal parent by filing a petition in the county where the child resides.  The petition and all related documents must be filed in superior court and the petition must allege that he or she has been treated as a parent by the child.  In addition, the petitioner must state how he or she has formed a meaningful parental relationship with the child for a substantial period of time.  A copy of this petition must also be delivered to the child’s parents if they are living and their whereabouts are known.  The court will deny the petition unless the petitioner establishes the following:

  • The petitioner stands in loco parentis to the child.
  • That it would be detrimental to have the child remain or be placed in the custody of the child’s living legal parents.
  • A court of jurisdiction has not entered or approved an order concerning the child’s custody within one year before the person filed the petition unless there is a reason to believe the child’s present environment may seriously endanger the child’s physical, mental, moral or emotional health.

Or if one of the following applies:

  • That one of the legal parents is deceased.
  • The child’s legal parents are not married to each other at the time the petition is filed.
  • There is a pending proceeding for dissolution of marriage or legal separation of the legal parents at the time the petition is filed.

If a person other than a child’s legal parent is seeking custody, there is a rebuttable presumption that it is in the child’s best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child’s legal parent.  To rebut this presumption, that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child’s best interests.

 

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