Family Law

Child Custody Isn't Always Connected to Divorce

True, child custody issues typically happen during a divorce, but custody matters come up in other situations, too. Sometimes couples have children but never marry, and when they break-up, there are custody disputes. With the rise in blended families, extended families and foster families, a stepparent, grandparent or a foster parent who's been a child's primary caretaker may seek custody.

In all these situations, it's not always easy for the courts to decide who should get custody. Knowing how the courts handle these cases can help you form a winning plan when custody of your child is at stake.

Child's Best Interests

At first, everyone might agree on custody. However, a custody dispute will most likely end up in court. When it does, courts look at the best interests of the child when making the decision. This means the court will award custody to the person who will best encourage the child's happiness, health, safety and well-being.

Unmarried Father Seeking Custody

Even if an unmarried father is listed on the child's birth certificate and paternity is established, it doesn't mean he has any custody rights. When seeking custody, you must show that you're committed to having a relationship with your child. You need to be involved and participate in raising the child.

A big factor in these disputes is who's the child's primary caretaker. The courts don't rush into making drastic changes to the child's lifestyle. However, if it's in the best interests of the child, you may win custody - or at least shared or joint custody - of your child.

Third Party or Non-parental Custody

An even more complicated situation arises if a person other than the child's parent wants custody. Such a person is sometimes called a third party or non-parent. Examples of a third party or non-parent include a:

A nonparent or other party has extremely high standards to overcome to win custody. First, you must establish that you have a right, or standing, to seek custody of the child. Then, you must show that custody with the legal parent is harmful to the child or that the parent is unfit.

Once again, the court will consider the child's best interests when deciding who should have custody.

Determining Custody

No single factor determines an award of custody. And many factors are looked at when it comes to the child's best interests. State laws vary, but almost all courts consider:

  • The child's preference
  • Parents' wishes as to custody
  • Emotional bonds between the child and parents, siblings and extended family
  • The child's adjustment to his home, school and community
  • The mental and physical health of the child and parents

Other things the court may consider include the child's current situation, whether there is drug or alcohol abuse by a parent, and any form of physical, mental or sexual abuse in the child's home.

Custody issues involve very personal, emotional matters, no matter if you're an unmarried parent, divorcing parent or a non-parent. In any case, it's critical to remember who's most important: Everyone should work to make sure the child's physical and emotional needs are met.

Questions for Your Attorney

  • Who can file for custody?
  • How does establishing paternity affect custody?
  • How hard is it to make custody changes?
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