Child custody determinations are based on a wide variety of factors, and it is essential to understand the specific laws of the state in which child custody is being sought. In general, however, most states have similar laws to make child custody determinations, including use of the “best interests of the child” standard and application of similar factors to determine the child’s best interest.
Changing Language of Child Custody
When parents are separating or getting divorced and have minor children, they will need to understand how child custody determinations work. Child custody laws are state laws, which means that each state may use its own language or rules for determining child custody. In general, however, most states follow relatively similar models with similar aims for determining child custody.
Some states continue to use the terms “legal custody” and “physical custody.” Legal custody refers to a parent’s right to make significant or important decisions about the child’s upbringing. Parents can share legal custody, or one parent can be awarded sole legal custody. To be clear, legal custody does not refer to a parent’s right to spend time with the child. Legal custody instead refers to a parent’s right to make decisions, for example, about a child’s education, religious upbringing, or health care. Physical custody, differently, refers to a parent’s ability to spend days with the child and provide daily care-taking functions. Like legal custody, parents can be awarded sole physical custody or can share physical custody.
A number of states have shifted away from using the language of legal and physical custody and have moved instead to using terms like parental responsibilities and time-sharing. Many states that have changed their laws now allocated parental responsibilities that are similar to legal and physical custody, but the terminology is different. In many states that have shifted away from the language of legal and physical custody, parents have the option of working together on a parenting plan that addresses parental responsibilities and time-sharing. In other words, if the parents can develop a plan for sharing important decision-making responsibilities for their children (i.e., legal custody) and for time-sharing (i.e., physical custody), the court can approve that plan as long as it is in the best interests of the child. In most states that have parenting plans, when the parents cannot reach an agreement, the court will allocate custody, parental responsibilities, and/or time-sharing.
Best Interests of the Child Standard
Courts across the country use the “best interests of the child” standard when determining child custody. Accordingly, parents should learn about which factors a court is likely to use when determining what type of child custody arrangement is in the child’s best interests.
Factors Affecting Child Custody Determinations
Every state has its own set of factors for the court to consider in deciding what type of child custody arrangement or determination is in the child’s best interests. Many common factors do arise across states, though. For example, most states do allow a court to consider a child’s wishes as one of the factors if the child is old enough or mature enough to voice a reasoned custody preference. A child’s wishes will not be the single factor in any child custody case, however. Other common factors include the health and well-being of the parties, the past conduct of the parents with regard to child-rearing, and whether the parents are willing to encourage a continuing relationship between the child and the other parent.
Many parents have concerns about whether certain factors will impact them negatively in a child custody determination, such as an extramarital affair, their religion, or their marital or relationship status. In general, adultery is not likely to play a role in a child custody case unless the specific facts surrounding one parent’s extramarital affair suggest that the parent is not fit. A parent’s religion also should not impact whether they are awarded or allocated child custody. Yet religion can play a role when a court determines how to allocate or award parental responsibilities surrounding the child’s religious upbringing. In states where courts can allocate different responsibilities to each of the parents, the court may allocate religious upbringing to the parent who has been the one to plan and foster the child’s religious upbringing during the marriage.
Parents also worry about whether sexual orientation can affect a child custody determination, or whether marital status can affect whether they are awarded custody. In general, courts should not (and typically do not) discrimination based on a parent’s sexual orientation. In terms of cohabitation, if a parent is living with a partner who could endanger a child’s legitimate health or well-being, the court can consider the cohabitation when making a custody determination or considering a modification request.
In situations where one parent has concerns that the other parent is not doing a good job or is putting the child in harm’s way, it may be possible to modify an existing child custody determination. While each state has its own laws for modifications, any parent seeking a modification in general will need to show that a substantial change in circumstances has arisen or that one of the parents is significantly endangering the child. For example, a parent who allows a child to miss a few days of school for a trip or another reason that the other parent does not believe to be legitimate typically will not be a reason for a modification or to limit that parent’s custody.
Domestic Violence, Criminal Convictions, and Child Custody
Domestic violence and criminal convictions are a significant factor in child custody determinations. While a history of domestic violence or a criminal record will not necessarily prevent a parent from having any access to his or her child, a history of domestic violence or child abuse certainly can be reason for the court to restrict a parent’s access to the child and, in many cases, to award sole legal and physical custody to one of the parents. However, it is also important to remember that criminal convictions are not all treated the same. Typically, if a criminal conviction suggests that a parent could endanger a child’s life, the criminal conviction could affect a custody determination. For example, convictions for sex crimes or other violent crimes may limit parenting.
Any parent who has questions about child custody determinations should speak with an attorney with experience handling cases in that state for up-to-date information about state child custody laws.
