• Child Custody Frequently Asked Questions

    How does a court decide who gets custody of the children?

    Child custody laws vary from state to state. However, almost all courts use best interest of the child standard to decide with whom a child will live. Numerous factors go into deciding which parent can give a child the life that is best for them. Some factors are a parent's mental and physical health, the lifestyle of each of the parents, the kind of bond or relationship the child has with each of the parents, where the child is used to living and attending school, and the ability of each of the parents to provide a suitable home environment with food and shelter. Sometimes, a child's preference of which parent they want to live with will also be given great weight, if the child is old enough to make this decision.

    Do courts favor mothers over fathers when awarding custody?

    Most states require courts to decide what is in the child's best interests as opposed to making any determinations based on gender. Fathers that want custody of their children should never assume that a court will just decide in the mother's favor. Instead, a father seeking custody should do everything in his power to convince the court that the child's best interests are served if the child lives with them.

    Are there arrangements where parents share custody?

    Yes. Sometimes courts will award what is called joint custody to both parents. Joint custody can be joint physical custody, joint legal custody, or both joint physical custody and joint legal custody. Joint physical custody refers to the actual time that children spend with each parent. Joint legal custody means that both parents have a say in decisions made about how the child is raised. This includes things like what schools a child attends and the child's religious upbringing.

    How are visitation rights determined?

    Visitation rights can be agreed upon by two parents who can then have their schedule approved by the court. A court will almost always approve the schedule unless there is something blatantly unreasonable about it. If two parents cannot agree, the court may order what is called reasonable visitation. If a court orders reasonable visitation, the parents work out the exact details themselves. Parents are expected to be reasonable but the parent that has custody has more power when reasonable visitation is ordered. This is because the court has not required them to accept any specific schedule. If the noncustodial parent feels the parent with custody is not being reasonable, the noncustodial parent may then go back to the court and ask for fixed visitation. A fixed visitation schedule is one where a court orders that the noncustodial parent has visitation rights on certain days and times. For example, visitation with the noncustodial parent might be ordered for every Monday and Friday night. Courts can order a fixed visitation schedule when there is so much animosity or ill will between the parents that it is unreasonable to think they can agree on a schedule together.

    Can a judge require a parent to get a drug test?

    Child custody laws vary from state to state. However, most of the time a court can order drug testing. If a parent refuses, some of his or her rights may be taken away. For example, a parent that does not submit to the drug testing may have their visitation rights taken away until they take and pass the drug test.

    Can a gay or lesbian parent seek custody of a child?

    Most states do not allow a parent's sexual orientation to be a reason for denying custody. Gay or lesbian parents should never hesitate to ask for custody or assert their visitation rights. Judges in most states are required to consider what is in the best interest of the child. However, judges, like other people can have their opinions and prejudices. Gay or lesbian parents who are nervous about seeking custody should consult a lawyer so that their rights are protected.

    Is mediation a viable option for child custody arrangements?

    Mediation is a great alternative to child custody lawsuits. Mediation is conducted by a neutral third party mediator. The mediator's job is to promote discussion between the parents that ultimately ends in an agreement on the custody issue. Mediation is cheaper and does not require witnesses or attorneys. Another advantage of mediation is that it is often a much faster process than litigation. Litigation frequently drags on over the course of several months while mediation can result in an agreement in as little as 2 or 3 weeks.

    Is race a factor when deciding child custody?

    Courts are not allowed to use race as a factor when deciding who should have custody of a child. The standard that courts must follow is what is in the best interest of the child. Custody decisions cannot be based on race.
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