Child Custody FAQ and Answers
Can we agree to child custody in a separation agreement?
Yes, and many people are able to agree to a custody schedule without going into court. This is often done by a separation agreement. We often do a consent custody order instead of using a separation agreement. If your state has you file a separation agreement and it becomes a court order then it is probably ok to use it. However, you should talk with an attorney to understand the difference.
We don’t have a custody agreement and there isn’t a court order so who has custody of our child?
You both do. Without an order from a judge or an agreement, you both share equal rights to the child. However, the informal arrangements you make can be broken or changed at the whim of either parent. This causes uncertainty for both parents and children.
Can my child decide who he/she wants to live with?
Maybe. If your child has sufficient mental capacity to offer a reasoned opinion as to where he/she wants to live the Judge can hear from your child. In most states, a child’s wishes are to be considered but they are not controlling on the judge’s decision.
If we can’t reach an agreement and we have to go to court how will the judge decide where our child will live?
The judge will listen to the testimony of witnesses who are called by both parties and make a decision as to what “is in the best interest” of the child. The judge has wide latitude to decide the case how he or she sees fit. As you can imagine it is important to know how the judge often rules in different cases. The judge can decide to give both parents equal custody or give one parent physical custody and the other parent visitation. In rare cases where the child is in danger, the judge may order no visitation or supervised visitation.
What factors will a judge consider to determine where my child will live?
The judge will look at any factor that has to do with what is in the best interest of your child. Some factors a judge may consider are: acts of domestic violence between the parents, the parents’ sexual conduct (whether or not the child is exposed to sex in the home), child’s education, physical and emotional health of the child and parents, living situation of both parents, spiritual development (cannot prefer one religion over another but can take into account if there is a parent who will nurture the child spiritually), etc.
What is the difference between legal custody and physical custody?
Legal custody refers to parents’ rights and responsibilities to make decisions with important and long-term consequences for their child’s welfare and best interest. Common examples of decisions a parent with legal custody can make include deciding what school their child attends, arranging medical care, and whether or not their child will participate in religious activities. In general, if the decision has anything to do with the child’s welfare, then it falls into the realm of legal custody. If the parents struggle to reach mutual agreements regarding the child, then the court will usually award one parent primary legal custody. Parents who can get along will usually have joint legal custody and share the decision-making process.
Physical custody is easier to understand; physical custody means the physical care and supervision of a child. A parent with physical custody of the minor child has the ability to make day-to-day decisions for the child because the child is in that parent’s care. For example, if a child is in the parent’s physical custody, then the parent decides what they eat, where they spend their time, what clothes they wear, etc. Where do I file for custody? You will file a complaint for custody in the state where the child has resided for the past 6 months. If there is no state where the child has resided for 6 months then you need to contact an attorney. You can file the complaint in the county in which the child lives or in a county where either of the parents live.
Do courts favor the mother over the father?
Not anymore. Courts now consider the best interest of the child.
What are the chances that I will get primary custody of my child?
No attorney can answer this question with 100% certainty because the laws surrounding custody are not black and white and vary tremendously from case to case. However, what an attorney can do is explain the trends we see on a daily basis in the courtroom.
How long does the process take?
If you are unable to come to an agreement with the other parent, then go ahead and mentally and financially prepare yourself for the process taking at least a year. The caseload varies from state to state and county to county and you can expect a custody case to take at least a year. Even if the courts could accommodate the ever-growing court docket, your attorney will want enough time to collect evidence and prepare for trial. Additionally, most states require that the parties attend mediation.
Can I modify custody?
You may modify a permanent child custody order if there has been a substantial change in circumstances, positive or negative, affecting the well-being of the child since the date of the initial order. Once you show the court that there has been a substantial change in circumstances, the court will then decide what is in the best interest of the child.
As you can see child custody issues are as complex and as varied as the people experiencing them. If you want more information about your particular case contact the McIlveen Family Law Firm.