Tash & Kurtz - Family Law Attorneys

At the Crossroads Excellent Counsel.
At the Crossroads Excellent Counsel.

FAQs

Child Custody FAQs

What are the different types of child custody?
How does the court determine what is in the best interest of a child in a child custody case?
What factors do courts take into account when deciding who gets custody of the children?
Are mothers more likely to be awarded custody over fathers?
If a couple is separated, and one moves to another state and files for divorce and custody in that state, what are the rights of the other spouse?

What are the different types of child custody?
Child custody can be broken down into two separate categories:

  • Legal - This gives one or both parents the right to make legal decisions for the child regarding education, health care, religion and his or her general welfare. Sole legal custody is when only one parent can make these decisions. Joint legal custody awards that right to both parents.
  • Physical – This is where the child resides. Sole physical custody is when a child lives with one parent, and the other has visitation rights. Joint or shared physical custody occurs when a child is able to reside with each parent for a substantial amount of time during the course of a calendar year (even if it is not precisely “equal”).

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How does the court determine what is in the best interest of a child in a child custody case??
The court will examine a number of factors, including who the children are living with at the time the custody determination is made, the children's historical relationship with each of the parents, and each parent’s ability to care for the children.

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What factors do courts take into account when deciding who gets custody of the children?
A court gives the "best interest of the child" the highest priority when deciding custody issues. What the best interest of a child is in a given situation depends upon many factors, including:

  • The child's age, gender, mental health and physical health;
  • The mental and physical health of the parents;
  • The lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse;
  • The love and emotional ties between the parent and the child;
  • The parent's ability to provide the child with food, shelter, clothing and medical care;
  • The child's established living pattern (school, home, community, religious institution);
  • The quality of the schools attended by the children;
  • The child's preferences, if any, and if the child is mature enough to form and articulate a reasoned opinion; and
  • The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.

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Are mothers more likely to be awarded custody over fathers?
In the past, most states provided that custody of children of "tender years" (five and under) had to be awarded to the mother when parents divorced. This rule has now been rejected in most states. No state requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody based on what is in the child's best interests without regard to the gender of the parent. See the above question to find out how courts determine what is in a child’s best interest.

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If a couple is separated, and one moves to another state and files for divorce and custody in that state, what are the rights of the other spouse?
Contact a qualified family lawyer at Tash & Kurtz, PLLC to discuss your situation. If you and your child resided in your state for the past six months, your state would normally have “home state” jurisdiction to issue a custody order. You may need to contest the custody action in another state, although it is possible that such other state can still order a divorce – a termination of the legal relationship between the two of you.

For more information on Child Custody, please see our Child Custody page.

For additional questions, contact Tash & Kurtz, PLLC.

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