Child Custody Legal Information

Overview

Child custody lawyers handle all the complex matters related to the care and parenting of minor children. In most cases, these are the children of a divorcing couple, but they could also be children of a non-married couple that is separating; orphaned or endangered children whose relatives seek custody; foster or adoptive children; or other children with an unstable parenting situation.

Child custody lawyers help parents and guardians make their case for custody, advocate for the children’s interests and protect children who could be endangered by a court’s decision.

 

“What types of child custody arrangements are available?"

In all states, there are two types of custody:

  1. Physical custody -- living with, caring for and parenting your children on a daily basis.
  2. Legal custody -- the right and responsibility to make decisions for your children.

Courts usually award joint legal custody to both parents. The exceptions are when one parent is unfit or has an unusual circumstance that prevents him or her from making good decisions. When legal custody is joint, both parents have an equal say in their children’s lives.

By contrast, joint physical custody can be divided in many ways, depending on the circumstances of the parents and the best interests of their children. Children might spend part of the week with each parent; see one parent only on weekends and holidays; or live all year with one parent but spend summers with the other. Sole physical custody is less rare than sole legal custody, but many courts prefer not to award it unless it’s truly in the best interests of the child. Even if one parent has sole physical custody, the other may still have visitation rights.


“Can we decide on our own how to handle custody?"

Family courts actually prefer that parents try to decide custody matters on their own. When parents can agree, it saves time, money and heartache for everyone involved. In many states, you can sit down with the other parent and work out a “parenting plan,” which is an agreement about how you plan to share physical and legal custody. You should think about day-to-day concerns like proximity to school, friends and relatives; special arrangements for holidays; medical insurance and tax arrangements; and rules you want to set for dating, religion and other important issues. If you are considering remarrying or moving out of the area, you should take that into account as well.

If you can agree on a parenting plan, you can simply take it to the court for approval. Your child custody lawyer should look it over first, to make sure it’s fair and protects your parental rights. As long as it’s legal, it is likely to be approved by the court. If you can’t agree on a parenting plan, you may need to ask the court to decide on it for you -- but you may not like the results. If you do not stick to your parenting plan, the other parent has the right to complain and ask the court for a modification.

 

“What factors does the court consider when awarding custody?"

Almost all states require courts to put the best interests of the child first when deciding custody. Many also have lists of factors to consider that can contribute to the best interests of the child. Examples include:

  • The children’s ages, genders and health.
  • The parents’ financial ability to care for the children.
  • The parents’ physical, mental and emotional health.
  • Proximity to an established school, religious organization and other routine activities.
  • Proximity to siblings, grandparents and other relatives who could be beneficial.
  • Quality of education at each residence.
  • Whether either parent plans to leave the area.
  • The parents’ preferences.
  • The child’s preference, if the child is over a certain age.
  • Any legal trouble or misconduct by the parents.
  • Whether either parent has a history of interfering with visitation.

 

“What can I do if my ex-spouse isn't following our plan?"

There are a few reasons why one parent might not be sticking to the plan. Before you get angry, make sure he or she realizes there’s a problem.

Your ex could simply have misunderstood the terms of the agreement, or is unable to stick to it because of work or other circumstances.

But if a parent is genuinely breaking the rules and won’t change his or her behavior, there are a few things you can do:

  • Petition the court for a change in the parenting plan. If the other parent isn’t following the rules, the court will often agree to a new plan that gives him or her fewer chances to interfere with your rights.
  • Have your ex held in contempt of court for breaking the terms of the parenting plan. The worst penalty for this is generally a few nights
    in county jail.
  • Ask prosecutors to charge your ex criminally with custodial interference. This law does not exist in every state, but where it does, it penalizes parents who intentionally take their children away from a custodial parent, especially if they cross state lines. The penalties can include prison time, for very serious offenses.

Your child custody lawyer can tell you which choice is best for you, and help you start the process.


“What If I want to change my custody arrangement?"

Courts understand that circumstances change. As children grow older, they may change their minds about when and how they want to spend time with each parent. Parents may remarry, move or make other major life changes. To account for these, courts allow parents to petition for changes to their custody arrangements.

If the other parent agrees, this can be as simple as drawing up a new parenting plan and submitting it to the court for approval. Parents will have to show that there’s been a change, and that the modification is in the child’s best interests. If the other parent doesn’t agree, you may have to go to court.


“Can I ask for custody if I am not legally recognized as a parent?"

This question comes up often when step-parents, domestic partners and others in a child’s life are concerned about the parent’s or the state’s custody decisions. Generally, courts prefer to keep families together. If you want custody of a child, but you’re not that child’s parent, you will have to show compelling reasons for granting you custody. If the biological parents are still available, you will have to show that:

  1. The biological parents are not fit or not able to parent. You must be able to point to serious problems with the parents -- physical, sexual or psychological abuse; neglect or abandonment; prolonged separation; no parental relationship.
  2. You are psychologically the child’s parent. To show this, you must show that you’ve lived with the child and acted as his or her parent; that you have a parent-child bond; and that the biological parents consented to your role in the child’s life.

If biological parents are not available, you may be able to have them placed with you as foster children or start the process of adopting them. You should speak to a child custody lawyer for help.

Grandparents and other relatives have more rights than people who are not related to the children. Again, courts prefer to keep parents and children together -- but they must also consider the best interests of the child. Many states will award custody to grandparents before they will place children in foster care.

If you’re a biological father, but aren’t legally recognized as a father, you can file a paternity action. You will have to go to court and submit to genetic testing. If you’re successful, you will be given all the same parental rights that are given to divorcing parents.

Payment

Most child custody lawyers will charge by the hour. Because child custody issues require a court appearance, it’s rare to find a lawyer who will charge a flat fee to handle them. However, there are a few who prefer to charge flat fees for all child custody matters. Your child custody lawyer should tell you about rates and fees before you agree to hire him or her. Many offer free consultations, meetings at which you tell the lawyer about your case and learn a little about what he or she can do for you.