Divorce: Child Custody FAQ

• Can a court order drug testing of the parents when determining custody?
• Can I move my kids out of state and then get a divorce?
• I have custody of my son, but the court papers state that his mom has custody. Where do I file to get legal custody of the child?
• If I'm going to leave my marriage and file for divorce, should I leave the kids with my spouse until I'm settled elsewhere?
• My husband and I are separated, and he moved to another state. He has our child for a short visit, and has filed for divorce and custody in his state. What do I do?
• What is a shared custody arrangement and how does it work?
• Who is the custodial parent when there is no court order and the parents aren't married?
• Will a court look negatively on my smoking around my child?
• Will moving in with another man ruin my chances of keeping custody of my daughter?
• Will the court allow me to change my child's last name to mine, from the father's last name, since her father isn't a major part of our daughter's life?

---

Q: Can a court order drug testing of the parents when determining custody?

---

• A: Quite likely, yes. If you don't submit to the test, the consequences may be severe. An Ohio court recently held a father in contempt of court and suspended visitation privileges when he failed to comply with the court's order regarding drug testing. The court recognized the importance of the father-child relationship, however, and said the father could resume visitation after complying with the drug test order.

---

Q: Can I move my kids out of state and then get a divorce?

---

• A: Maybe. Barring some kind of restraining order or state law to the contrary, either parent can move and take the children with them. However, you probably won't be able to file for divorce in the new state right away. In order to obtain a divorce in a state, you must satisfy the requirements for residency in that state (typically living in that state for three to 12 months). Even after you satisfy those requirements, the state may grant you a divorce but have no jurisdiction to decide the other issues of your divorce (like property division, support and custody), because there may not be personal jurisdiction over your former spouse, because he or she is in another state. And while you're living in the new state waiting for the residency requirement to be met, your spouse can file in the state where you lived before, forcing you to travel there to defend yourself in the divorce proceeding.

  The states recognized long ago that a parent might take the kids and move across the country in order to make things more difficult for the other parent. The laws are generally written to avoid that possibility. It's best to consult with a local attorney before moving.

---

Q: I have custody of my son, but the court papers state that his mom has custody. Where do I file to get legal custody of the child?

---

• A: The Uniform Child Custody and Jurisdiction Act ("UCCJA") and the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA") normally govern multi-state custody matters. Under the UCCJA in many states, and under the UCCJEA, you likely need to file in the state where custody has been addressed before. Under the UCCJA in some states, you may be able to file in your state. The UCCJA was an attempt at a uniform law that would resolve lots of problems. Unfortunately, it left out some important language, and the 50 states each filled in the blanks on their own. The UCCJEA attempted to resolve the problems among the states, and a large number of states have adopted the new law. There are exceptions to the continuing jurisdiction that the state first ordering custody enjoys. Many attorneys give free consultations, so speak with some.

---

Q: If I'm going to leave my marriage and file for divorce, should I leave the kids with my spouse until I'm settled elsewhere?

---

• A: Only if you have no interest in having the children live with you after your divorce is granted. The law usually makes preserving the status quo a preference in making a custodial determination. Barring some serious problem with the arrangements already in place, they will frequently want to leave well enough alone. Leaving the kids with the other parent can be seen as approval of that parent's fitness as a parent.

  This means, of course, that if custody is important to you, you should not leave your children with the other parent for any length of time (more than a night or two). And if you're afraid the children aren't safe alone with the other parent, you should consider whether it's safe to leave them with the other parent for any length of time.

---

Q: My husband and I are separated, and he moved to another state. He has our child for a short visit, and has filed for divorce and custody in his state. What do I do?

---

• A: You should immediately contact a qualified family lawyer in your community to discuss your situation. If you and your child resided in your state for the past six months, your state would normally have "home state" jurisdiction to craft a custody order. You may need to contest the custody action in his state, although his state likely can still order a divorce, a termination of the legal relationship between the two of you.

---

Q: What is a shared custody arrangement and how does it work?

---

• A: In most states, any custody or parenting arrangement must be in the "best interests of the child," so each case will be handled differently depending on the circumstances. For example, parents who don't live close to each other will have a different arrangement than parents who live in the same city and school district. Shared custody arrangements can have many variations. There can be a primary residential parent and a non-residential parent who spends time with the child according to a standard visitation schedule. Some courts have also approved plans where the residential parent alternates annually, monthly or weekly. Parents can generally agree on a shared parenting plan, or each parent can submit his or her own plan to the court and allow the court to decide. Either way, the court must approve the plan.

---

Q: Who is the custodial parent when there is no court order and the parents aren't married?

---

• A: It depends on state law. In many states, an unmarried woman who gives birth to a child is the sole residential parent and legal custodian of the child until a court issues an order designating another person as the residential parent and legal custodian. In other states a "presumed father" may have rights to custody. A man becomes a "presumed father" by taking certain actions with respect to the child, including:
  • Signing an affidavit of paternity
  • Marrying or attempting to marry the mother
  • Taking the child into his home
  • Holding the child out as his child

  A man who thinks he is the father of a child born out of wedlock normally shouldn't attempt to take custody of the child. If things go very badly, there is the potential for criminal charges.

---

Q: Will a court look negatively on my smoking around my child?

---

• A: Most courts must look at all factors related to the "best interests of a child" in making a custody decision. At least one court has found a custodial parent's smoking to be a relevant factor in changing custody. In that Georgia case, the child was diagnosed with asthma after the divorce and the mother continued to smoke. The court held that the mother's continued smoking in the child's presence showed inadequate concern for the welfare of the child.

  This, alone, may not be enough to require a change in custody, but it doesn't help. If your ex has shown an intention to use your smoking against you, stop smoking around the child. Better yet, stop smoking.

---

Q: Will moving in with another man ruin my chances of keeping custody of my daughter?

---

• A: Adultery is a ground for divorce in most states. It also remains a crime in many states, although the criminal statutes are rarely enforced. With the advent of no-fault divorce in many places, adultery now plays less of a role in divorce cases overall.

  Most states use some form of a "best interests of the child" standard to determine custody issues. Adultery may not have a direct effect on the custody decision, but may play an indirect role. Under the "best interests" standard, the court will consider your daughter's surroundings, which certainly includes her home life. Your child's relationship with the man with whom you're living, and how your relationship with him affects your daughter, will be relevant in the court's decision.

  Only one thing is just about certain with regard to adultery and divorce - it is almost never a good thing. It can harm you, and will likely never help you.

---

Q: Will the court allow me to change my child's last name to mine, from the father's last name, since her father isn't a major part of our daughter's life?

---

• A: Changing a minor child's last name is governed by the "best interests of the child" standard in most states. Factors which are normally important include:
  • The effect the name change would have on the child
  • The effect of the change on the preservation and development of the child's relationship with each parent
  • The identification of the child as part of a family unit
  • The length of time the child has used a particular name
  • The child's preference if the child is old enough to understand
  • Whether the child's last name is different from the last name of the child's residential parent
  • The embarrassment, discomfort or inconvenience that may result when a child bears a last name different from the residential parent's
  • Parental failure to maintain contact and support of the child
  • Any other factor relevant to the child's best interest