Child Custody Principles In General
- Generally speaking, each parent has a substantial right in the custody of his or her child which extends to all parents and is within the protection of the federal due-process and equal-protection clauses.
Legal vs. Physical Custody
- There are two types of custody. Legal custody and physical custody.
- Legal custody refers to the right and the responsibility to make decisions relating to the health, education, and welfare of the child.
- Physical custody refers to with whom the child actually resides.
Best Interests Tests
- The court will make a custody ruling that is in the “best interests” of the child.
- Best Interests is broad and can take into account an infinite amount of factors.
- The purpose of the best interest test is to make a custody order which will maximize the child’s opportunity to develop into a stable, well-adjusted adult.
Generally Accepted Principles
- If a parent has issues with substance abuse, ie drugs or alcohol, the court may grant custody to the other parent.
- If a parent has a history of domestic violence, the court may find the child is in danger and grant custody to the other parent.
- Sexual or child abuse by a parent may lead the court to grant custody to the other parent.
- Stability, continuity and a loving relationship are important factors in determining the best interest of the child. The length of time that the child has been in the continuous, actual, physical custody of the parent who has custody at the time of the hearing must be considered by the court.
- If a child does not receive medical attention while with one parent, then the court may grant custody to the other parent.
- The willingness of a parent to provide for the child’s special education needs is a factor for best interests.
- Potential disruption in a child’s schooling is a factor in the best interest test.
- Parent’s lack of cooperation to co-parent with the other parent is a factor in the best interest test.
- Wealth of each parent is NOT a factor in the best interest test.
- The fact that one parent is lesbian or gay is NOT a sufficient reason to grant custody to the other parent.
The court will consider all facts and evidence presented by the parties and determine what custody arrangement will be in the best interest of the child.
Modification of Child Custody- Change of Circumstances Requirement
- Generally speaking, a party must prove there is a substantial change of circumstances affecting the child to modify a child custody order.
Examples of change of circumstances
- Custodial parent’s frustration of the noncustodial parent’s visitation rights.
- The remarriage of a parent.
- Substance abuse of a parent.
- Physical or sexual abuse by a parent or other party in the home.
- Prior to any hearing or order concerning child custody or visitation, the parties must submit to mediation with family court services.
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* All information on this website is for informational purposes only. This website and the information herein should not be construed as legal advice and should not be relied on without first consulting with counsel.