When a family breaks apart, one important decision is who gets custody of any children. Usually, a parenting agreement is reached with the assistance of an attorney or a mediator. When the parents cannot agree, the issue can go to court.

Types of Custody

There are two types of custody. Physical custody is awarded to the parent with whom the children will spend most of their time. This person is called the custodial parent. The other parent gets visitation rights on a set schedule. In a joint custody arrangement, the children spend roughly the same amount of time with each parent.

Legal custody is the right to make decisions about important elements in the child’s life, such as education, religion and health care. Often, the custodial and non-custodial parents share legal custody.

Best Interests of the Child

In deciding which parent becomes the “custodial” parent, the courts consider the best interests of the child. Usually, this means the best care and the least amount of change. The parent who can offer the children the least amount of disruption in their lives will usually get physical custody. It is best if children can stay with the primary caregiver they are used to, in the home and school they are used to.

When both parents are incapable of caring for a child, non-parental custody can be granted.

Preferences of the Child

In some states, judges will consider a child’s wishes when deciding custody. They will not automatically place the child with the preferred parent, but will factor in the child’s wishes. This is particularly true when the children are teenagers. The courts prefer to keep brothers and sisters together.

Changing Custody

When parents agree that a change in custody is needed, the process is relatively simple. An order signed by both parents is filed with the court. When parents don’t agree, changing custody involves going back to court and beginning a new legal action. There must be a good reason for a change, like the mental or physical safety of the child, a move or a change in employment status.

When Parents Are Unmarried

When a child’s parents are unmarried, most states require that the mother be awarded sole physical custody unless the father takes specific action.

A Family Lawyer Can Help

The laws surrounding child custody are complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a family law lawyer.

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