Most people probably associate child custody with divorce actions, but child custody issues are also common in actions involving paternity, guardianship, termination of parental rights and juvenile delinquency. Child custody not only involves the physical custody and control of your child, but the parental rights, privileges, duties and powers connected to child rearing.
The "best interests of the child" is the universal standard used in determining child custody issues. How child custody issues are treated by the courts today reflects changes in the decisions issued by the courts, states statutes, society and psychological research findings.
Best Interests and Joint Custody
The "best interests of the child" is the court's main consideration when determining a child custody issue. A court looks at the facts and circumstances of your case, presumes that your child's best interests are served by granting custody to a parent and seeks to find the custodial arrangement that best meets your child's physical, psychological and emotional needs.
This standard, which has been emphasized since the late 1970's, is much different than the old presumption for maternal custody. The old standard was based on the idea that mothers were better suited for giving the necessary nurturing for young children.
Both Parents are Involved
Joint custody is the presumed or preferred form of child custody in many states. This preference reflects societal changes such as mothers working outside of the home and fathers taking a more hands-on role in child rearing. While joint custody can be simply defined as "shared custody," there are many forms of joint custody in which parents share both physical custody of the child and the legal rights connected to child-rearing decisions.
Child Custody and the Courts
Child custody is among the first and most important issues you'll address as a divorcing parent. Even in the most bitterly contested cases, spouses generally have a sincere concern in reaching the custody and visitation arrangement that best serves their child.
In a divorce action, you might see several methods used by the courts in arriving at a decision on the custody order for your child:
- Courts will often accept the custody plan fashioned by the parents in their separation agreement after reviewing the plan to ensure that it serves the child's best interests
- Mediation of custody issues lets you and your spouse avoid hostile, stressful and traumatic court battles over custody by giving you both the chance to reach the common goal of serving your child's best interests in a civil manner. Mediation of custody issues is mandatory in some states
- Specialized courts are used in some states for cases involving child custody disputes, such as the specialized court in Connecticut. It has a high success rate in settling custody disputes
- You may be required to participate in parent education courses. They're meant to inform parents of the effects of divorce on children, and to supply you and your spouse with strategies to cope with the issues that you and your child will likely face during and after the divorce
- Attorneys' roles in custody actions have changed over time as well. An attorney appointed as a guardian ad litem may serve as an advocate for your child's best interests, or as a neutral fact-finder, who acts more as an investigator and provides a judge with information to be used in the custody ruling
Custody Rights and Children's Rights
It's important to keep in mind that courts are increasingly recognizing children's rights and needs in when making child custody decisions.Courts recognize psychological authorities and studies related to child custody issues, and the role of third parties, such as grandparents, stepparents and others in determining custody and visitation plans for children when divorce or other circumstances remove children from the traditional family setting.
Divorce is stressful for you and your spouse, but it's just as stressful for your child, if not more so.It's the court's job to make sure your child gets the necessary physical and emotional care and support your child needs to survive the divorce and have full and happy childhood. It's a job the courts take seriously and they'll make every effort to make the right decision.
Questions for Your Attorney
- Will remarriage affect my chances for custody of my child?
- Will the court take into account my political or religious beliefs during the custody proceeding?
- Can both parents work out a joint child custody plan without input from the court?