How Custody Law Works in Divorce Proceedings

In a divorce, one of the most emotional battles can be over who gets custody of the children.

The good news is, more than 90% of parents reach a custody resolution on their own. Despite 40% of the states awarding 50/50 custody, 79.9% of custodial parents in the U.S. are mothers.

Even if you and your spouse reach a resolution on child custody, you must meet all requirements under state custody law. This includes consideration for physical custody, legal custody, parenting time/visitation rights, child support, and medical expenses.

Keep reading for everything you need to know about reaching a settlement that meets the legal requirements of your state.

Best Interests of the Child

When making a custody determination, every state uses the “best interest of the child” standard. These are factors a judge considers when making a determination on which parent receives custody. They may vary slightly from state to state, but include:

Child’s Age

While the doctrine regarding a child’s “tender years” has been replaced by a child’s best interests, many judges believe young children should live with their mothers. This is especially significant if the mother has always been the primary caregiver. A nursing mother will definitely have precedence over a father.

Ability to Provide

You must show your ability to meet the child’s basic needs of food, medical care, clothing, etc. Do you have the ability to pay for childcare? Do you have an adequate residential location?

If one parent is awarded the family home in the divorce, the scales lean in their favor for having primary physical custody. Remaining in their home is less disruptive to the child’s life. 

Where you take up residency following the divorce is important. Is the location safe? Does the child have their own bed and bedroom?

What is your home’s proximity to the school the children attend? Are you able to get them to and from school?

The closer you and your ex-spouse reside to each other and the child’s educational and extracurricular activities makes an award of 50/50 parenting time more likely.

Moral Conduct

The court isn’t sitting on your street with binoculars to see if you are dating or have a party that runs until midnight. They are looking for clues that your behavior is not conducive to the proper upbringing of children.

Acts such as reckless driving sanctions, drunkenness, vulgarity, or a history of crime will work against you. If one parent has a relationship with a convicted child pedophile, this puts the children at risk.  

Support Other Parent’s Relationships With Children

A judge is more likely to award custody to a parent that is cooperative and supports the minor children maintaining a relationship with the other parent.

If you tend to bad-mouth the other parent, interfere with the other parent’s time with the children, or do anything to alienate the children from your ex-spouse, you will be the least favorable custodial parent.

Love and Affection

This deals with the emotional bonds between each parent and the child. This includes what parent the child turns to most for comfort and which parent the child prefers to spend time with.

If you barely had time to say hello to your children, never attend parent-teacher conferences, extracurricular activities, etc. you are not going to be viewed favorably as a custodial parent.

If you do an abrupt turnaround following the initiation of the divorce, the judge may respect your new commitment.

The judge will weigh your change of attitude carefully to determine whether you have an honest interest in being an involved parent. They will consider whether your purpose in winning custody is a form of retaliation against your spouse.

Child’s Preference

The judge may give a child’s preference consideration if they are 12 or older. The judge will speak with them privately. What the child says will be held in confidence.

The judge will determine if the child’s preference is credible. This includes phrasing questions to see if the child is being coached by a parent. They will consider whether an older child is favoring a less attentive, more permissive parent.

The judge will also consider professional reports from a child custody evaluator, child therapist, or other professionals. 

Abuse or Neglect

With more than 10 million men and women victims of domestic violence, the judge will take this into consideration. Because of the risk to your safety, the judge may order exchanges of the children to take place at a police department.

If there is concern about abuse toward the children the judge may order visits with the children to be supervised.

Types of Custody

There are different types of custody, and each may be awarded to the mother, the father, or to the parents on an equal 50/50 basis.

• Legal Custody—the right to make legal decisions about your child, such as education, healthcare, religion, summer camp, etc.
• Physical Custody—the parent the children live with, with joint custody the children live part of the time with one parent and part of the time with the other parent

If legal custody is joint, then parents must discuss and agree on all legal decisions regarding the child.

If physical custody is joint the parents may divide their custodial time by each having a portion of a week or alternating weeks.

Parenting Time/Visitation

Depending on the state you reside in the time a non-custodial parent spends with their child may go under the term parenting time or visitation. A typical visitation order will alternate weekends and holidays between the parents.

A parenting time order will specify the details of the exchanges. This includes when and where they take place, allowances for a parent being late, how to handle a need to change the schedule, etc.

Depending on the circumstances of your case, the court may also order a parent to have supervised visitation. This is to protect the child when visiting with the parent. The supervision will be by a mutually agreed-upon adult or professional.

Reaching a Resolution

When you’re battling through divorce and child custody, you need to set your differences aside and work toward a resolution in the best interest of your child.

Rather than take the matter to trial, the judge may order the two of you to attend child custody mediation. The hope is you will work out a resolution without the court’s interference.

If you have questions regarding the legal issues of your case, you need to speak with child custody lawyers. They will explain your rights and responsibilities in your state and what they can do to help you.

Get Custody Law Help

Family Law Attorney Near Me is a resource for finding the custody law help you need. We provide access to 16,420 professionals. Simply key in your zip code to find a family law attorney near you.

Check out our Divorce Law section for help with your device. If you have custody and visitation questions or are battling custody after divorce the law requires a change in circumstances. For custody only visit our custody and visitation section. 

Whether seeking divorce or custody we can help you find an attorney near you. Check us out today!