When married parents are getting divorced or unmarried parents are ending their relationship, those parents will need to understand how child custody is handled in their state. Each state has its own laws governing child custody, including definitions of child custody and how it is awarded or allocated to parents. In most states, courts will make decisions about child custody based on what is in the child’s best interests. The following includes general information about seeking and obtaining child custody during a divorce case.
Seeking Custody of Your Children in the Divorce
Petitioning for child custody can take different forms depending upon state law. When one parent files a complaint or petition for divorce, that parent typically can seek child custody at that point in time, and the court will decide about child custody as part of the divorce case. To be clear, the petition or complaint for divorce will have a separate section for child custody, which explains that the parent has minor children from the marriage and is seeking custody as part of the divorce proceedings.
When a parent is served with divorce papers that include a request for child custody, it is extremely important for the parent who has been served to file an answer. While the party served with divorce papers always has a amount of time based on state law to file an answer, doing so will be necessary for that parent to indicate that she or he is also seeking child custody. In sum, a parent must inform the court of their plans to seek child custody.
Attending Parenting Classes
Many, but not all, states will require parents seeking child custody to attend parenting classes. Some states permit parents to attend these classes “virtually,” meaning that the parent can take the class online. To be awarded or allocated child custody, it is extremely important to attend any required parenting classes to show that you are serious about seeking custody.
Family Mediation and Parenting Plans
A number of states now permit parents to attend family mediation or to work together through their attorneys to develop a parenting plan or parenting schedule in which they make child custody determinations to be approved by the court. This option allows parents to have more control over the child custody process, and it can also make the process more flexible given that parents can create time-sharing schedules that specifically consider their own work hours and vacation needs.
When parents develop a parenting plan or time-sharing schedule—these plans have different names or terminology depending on state law—the outcome still must clearly be in the child’s best interests in most states. Depending upon the state, a judge may reject portions of a plan and may request revisions from the parent in order to ensure that the plan is in the child’s best interests. Once a judge approves a parenting plan, it becomes enforceable law just like any other court order.
“Best Interests of the Child” Standard for Determining Custody
As discussed above, most states use a “best interests of the child” standard for determining child custody. Every state has its own laws, which frequently list a wide variety of factors that a court can take into consideration when deciding what type of arrangement is in the child’s best interests. For example, parents can see the difference between factors under Florida law and Illinois law. States often look at factors such as the parent’s previous relationship with the child, the parents’ willingness to work with one another for the child, each parent’s willingness to facilitate a close and continuing relationship between the child and the other parent, the physical and emotional health of all parties, and whether there is a history of domestic violence.
When a family has a history of domestic violence, or a history of child abuse or neglect, that history can be a reason for the court to restrict child custody or visitation. While many states instruct judges to begin with a presumption that both parents should spend time with their children after a divorce or separation—even if that time is not shared equally—that presumption can be disrupted by a history of violence or neglect.
Proving Your Involvement in the Child’s Life
One of the best ways for a parent to show that she or he should be awarded child custody is to have a close and continuing relationship with the child. To be clear, the parent should demonstrate his or her interest in being involved in the child’s life, and an interest in making reasoned decisions about the child’s well-being. A parent should be able to demonstrate that she or he can make everyday decisions about caretaking for the child and can help the child with day-to-day activities such as homework, bedtime and waking up, and family and community responsibilities.
Parents should also have a clear understanding of the child’s needs, including educational needs and healthcare needs. A parent seeking custody should be able to articulate plans for a child’s education and routine healthcare, as well as for any specialized needs the child might have.
Different Types of Child Custody Models
Child custody models vary from state to state. Some states use a model in which parents are awarded legal and/or physical custody. In these scenarios, a parent can be awarded sole custody or both parents can be awarded shared custody. For example, one parent may be awarded sole legal custody (and the right to make important decisions about the child’s upbringing) while both parents may be awarded shared physical custody (the right to spend time with the child on a regular basis and to make day-to-day caretaking decisions for the child). In family situations where both parents have historically played important roles in making significant decisions about the child’s well-being, a court can also award shared legal custody. Sometimes when one parent lives a great distance away, parents may share legal custody while one parent has sole physical custody (and the other parent has visitation).
Other states use a more flexible model in which parents are allocated parental responsibilities, which can include important or significant decision-making responsibilities (similar to legal custody), as well as parenting time or time-sharing (similar to physical custody).
Sharing Custody with the Other Parent
When parents share custody, it is extremely important to abide by the court’s child custody order and to make efforts to ensure that the child’s well-being and best interests come first. If a parent has concerns about the other parent’s ability to make decisions or to care for the child, that parent may be able to ask the court to modify the existing child custody order.
Since child custody laws vary greatly from state to state, it is important to speak with a family lawyer in your own state about seeking child custody.
