Family Law

Issues and Laws Surrounding Child Custody

By Kristina Otterstrom, Attorney
Understanding what’s at stake in a child custody case.

If you’re a parent, there’s a good chance you could be battling child custody at some point in your life. Child custody issues aren’t limited to divorce. Disagreements over custody can crop up in a variety of settings, including paternity, separation, guardianship, termination of parental rights, and juvenile delinquency actions. Regardless of the type of case you’re involved in, your child’s best interests are central to any custody decision.

What are a Child’s Best Interests?

A child’s best interests are the deciding factor in any custody case. The “best interest standard” varies from state to state, but generally, the following factors are relevant when deciding what custody arrangement would best serve a child’s emotional and physical needs:

  • each parent’s physical and emotional well-being
  • each parent’s relationship with and emotional bond to the child
  • each parent’s educational background
  • each parent’s ability to provide the child with a stable environment
  • each parent’s job history and ability to support the child
  • the child’s special needs
  • the child’s relationship with extended family members
  • each parent’s motives for seeking custody
  • either parent’s history of domestic violence, child abuse, or child neglect, and
  • the child’s preference—if the child is of a sufficient age and maturity.

A judge may consider the above factors as well as any other factor relevant to a child’s best interests. Certain characteristics like gender or sexual orientation have no bearing on custody.

What Will My Custody Arrangement Look Like?

There are two main types of custody: physical and legal. Courts can award physical and legal custody as they see fit. Parents can share physical custody (where the child lives) and legal custody (decision-making power on the child’s behalf) or one parent may have sole physical and/or legal custody. For example, if you have no relationship with your child, a judge may award you joint legal custody, while giving your ex sole physical custody. A judge probably won’t grant a deadbeat parent full physical and legal custody immediately, but a court can create a custody arrangement that allows a parent to build a relationship with the child and work up to longer visits and more responsibilities.

Visitation and custody orders are usually very specific and will define when and where visits will take place. Additionally, a visitation schedule should define which parent receives visitation on specific holidays like Thanksgiving and Christmas, and each parent’s responsibility for transportation costs associated with visits.

What Can Cause Me to Lose Custody?

You can begin a custody proceeding with more custody rights than you end with. Ultimately, your custody rights will depend on your ability to meet your child’s emotional and physical needs. In certain cases, a parent can have visitation rights severely limited or taken away altogether. For example, if you have committed domestic violence or been in and out of drug rehab since your last custody hearing, a judge may allow only supervised visitation until you can demonstrate that the child is safe in your care. Supervised visits will take place at a specified location and in the presence of an agreed-upon third-party. While supervised visitation is generally a temporary arrangement, other limitations on parental rights can be permanent. In the most extreme cases, a parent can lose all parental rights over a child. Courts will terminate a parent’s rights only as a last resort in extreme cases of abuse, neglect, or some other harm to the child, and only if the termination would serve the child’s best interests.

Questions for Your Attorney

  • Will my religious beliefs affect custody?
  • Can my ex and I work out our own custody arrangement?
  • My ex has been abusing our child. Can I petition the court to have her rights terminated?
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