Child Custody Disputes

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There are few things in life more daunting than the possibility of a long, heated custody battle. While parties should, whenever possible, take measures to reach agreements regarding custody and visitation between themselves, sometimes such agreements simply cannot be reached. In such cases, the parties must ask the court to determine who should have physical and legal custody of their children. Child custody and visitation disputes are not uncommon in divorce court, and there are a few guidelines to be aware of when disputing these issues.

Best Interests of the Child

In deciding which parent should get custody, the overriding factor for the court is the “best interests” of the children. In cases where custody evaluations are ordered, the court may take into consideration the findings and recommendation of the custody evaluator. However, how much weight the court gives a custody evaluation differs on a case-by-case basis. In determining the best interests of the child, the court will look at a variety of factors, including the following:

  • The primary caretaker of the child. In determining which party was the primary caretaker, the court will look to which parent cared for the child’s basic needs on a daily basis, such as cooking for the child, bathing the child, and putting the child to bed. Additionally, the court will which parent did the spent the majority of the time with the child, purchased the child’s clothing and school supplies, and attended parent-teacher conferences and the child’s doctor’s appointments.
  • The wishes of the child. It is typically through a child representative or custody evaluation that the child makes his or her wishes known to the court, though some judges will consider speaking to the child privately if the child wishes to do so. Courts typically give great weight to the wishes of the child, provided the child is old enough to make an informed decision.
  • The home environment the child would have with each parent.
  • Each parent’s intent to foster a loving relationship with the other parent.
  • The character and fitness of each parent.
  • Any history of abuse or neglect

Child Representatives

Assuming that mediation between the parties has been unsuccessful with regards to child custody, the court will in many cases appoint a child representative (also known as a “guardian ad litem” or “attorney for the children.”) The court’s goal in appointing a child representative is to involve a neutral party whose soul function is to represent and advocate for the best interests of the children. While families with modest yearly incomes may qualify for a court-connected child’s representative (often an attorney from the local office of the public guardian), most parties will have to retain a private attorney to represent the children.  Child representatives charge fees commensurate with family law attorneys. The cost of retaining a court-appointed child representative is usually split evenly between the parties or divided up in proportion to the parties’ individual incomes.

Custody Evaluations

In especially contentious or complex custody battles, the attorneys for the parties, child representative, or court may have the family undergo a custody evaluation. A custody evaluation involves hiring still another professional, this time usually a child psychologist, psychiatrist, or social worker, to interview each of the family members (including the children) and make a recommendation to the court as to which parent should have legal custody the children. While the extensive interviewing, perceived interactions between each parent and the children, and psychological testing involved in custody evaluations can make them a useful tool for the court, such evaluations can often cost as much as $20,000 or more, depending on how many hours the evaluator spends working on the case.

Moving Out of Town or State

When the non-custodial parent (the parent with whom the children do not reside on a daily basis) decides to move more than a short distance away from the children, the parties will often return to court to modify the terms of the parenting agreement and marital settlement agreement. The parties may, for example, provide the parent moving away with less-frequent but longer visitation periods with the children, such as extended time over summer vacation or school breaks. Again, in modifying the terms of visitation, the court will look to the best interests of the children.

Generally, a court cannot prohibit a custodial parent from relocating within the state. However, if the custodial parent wishes to leave the state to reside elsewhere, the court’s permission must be obtained. The custodial parent must file a petition for leave to permanently remove the children from the state. Such motions are often hotly contested and can, again, involve child representatives and custody evaluations. In taking the best interests of the children into account, the court will consider the environment the children would live in, the ability to maintain a close relationship and enjoy visitation with the non-custodial parent, the financial hardship of moving the children on each parent, the ability to maintain or foster a relationship with extended family members, and the reason the parent wishes to move out of state.

Parents With Drug or Alcohol Problems

Usually, when one parent has an addiction to drugs or alcohol, the parent seeking custody of the children will generally raise the issue with the court in their custody petition. From there, the court may order one or both parties to undergo immediate drug testing and/or a drug and alcohol evaluation with an addiction specialist. However, while the fact that one party has a substance abuse issue may restrict custody and visitation, it is rarely sufficient to deny a parent access to the children entirely, absent proof that the children are in danger of physical or emotional harm.

In cases involving substance abuse, the court is more likely to engage the assistance of a child representative and custody evaluator. The court may also require the parent with the addiction issue to undergo random drug and alcohol testing, to remain clean and sober, and to attend regular drug and alcohol counseling in order to have unsupervised visitation with the children. In cases where the addicted parent has remained clean and sober for an extended period of time, the parent may seek to modify the court’s order to allow them greater custody and visitation rights.

Non-marital Sexual Relationships

Typically, a court will not consider non-marital sexual relationships as a factor in child custody decisions. That a parent has begun dating following the breakup of the marriage or had an affair during the course of the marriage is not usually relevant to the question of the best interests of the child. However, if the parent’s new love interest has caused the child embarrassment or if the parent has exposed the child to displays of affection that make the child uncomfortable, the parent’s lack of judgment may be sufficient to call into question his or her parenting skills.

Homosexual Relationships

The consideration of homosexual relationships in the determining the best interests of the child varies greatly from state-to-state. While some courts may find that a homosexual relationship per se reflects on the parent’s ability to care for the child, other courts will not treat a homosexual relationship any differently than a heterosexual relationship outside the marriage. No matter how a state court views homosexuality, every parent in such a relationship will fare better before the court if the child does not witness displays of affection between same-sex couples.

Religion and Religious Practices

Courts generally will not take a parents’ religion or religious practices into account in making a determination as to the best interests of the child.  Indeed, under the First Amendment to the United States Constitution, courts are prohibited from considering a parent’s religion (or lack thereof) per se. However, if a child has been involved in religious activities in the past and such activities are important to the child, the court may consider which parent would be best able to foster the child’s continued involvement in those activities. Likewise, if a parent’s religious practices are harmful to the child, such as encouraging marriage at an extremely early age or involving the child in snake handling, the court may take any risk to the child’s safety into account.

Modifying Child Custody

In most states, a parent can seek to modify custody at any time if there is evidence that the child’s health or emotional well-being is at risk, or if there is a significant change in circumstances that warrants a change in custody.  However, if a parent wishes to modify custody simply because he or she does not believe the court acted in the best interests of the child, many states require a waiting period of several years following the entry of the original custody decree. These waiting periods seek to prevent parents from bouncing a child back and forth between parents in a never-ending custody battle.


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