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Child Custody PDF Print Email


Q: Can a court order drug testing of the parents when determining custody?

A: Quite likely, yes. If you don't submit to the test, the consequences may be severe. The court recognized the importance of the father-child relationship, however, and said the father could resume visitation after complying with the drug test order.


Q: Can I move my kids out of state and then get a divorce?

A: Maybe. Barring some kind of restraining order or state law to the contrary, either parent can move and take the children with them. However,  you probably won't be able to file for divorce in the new state right away. In order to obtain a divorce in a state, you must satisfy the requirements for residency in that state (typically living in that state for three to 12 months).

Even after you satisfy those requirements, the state may grant you a divorce but have no jurisdiction to decide the other issues of your divorce (like property division, support and custody), because there may not be personal jurisdiction over your former spouse, because he or she is in another state. And while you're living in the new state waiting for the residency requirement to be met, your spouse can file in the state where you lived before, forcing you to travel there to defend yourself in the divorce proceeding.  The states recognized long ago that a parent might take the kids and move across the country in order to make things more difficult for the other parent. The laws are generally written to avoid that possibility. It's best to consult with a local attorney before moving.


Q: If I'm going to leave my marriage and file for divorce, should I leave the kids with my spouse until I'm settled elsewhere?

A: Only if you have no interest in having the children live with you after your divorce is granted. The law usually makes preserving the status quo a preference in making a custodial determination. Barring some serious problem with the arrangements already in place, they will frequently want to leave well enough alone. Leaving the kids with the other parent can be seen as approval of that parent's fitness as a parent.

This means, of course, that if custody is important to you, you should not leave your children with the other parent for any length of time (more than a night or two). And if you're afraid the children aren't safe alone with the other parent, you should consider whether it's safe to leave them with the other parent for any length of time. Q: My husband and I are separated, and he moved to another state. He has our child for a short visit, and has filed for divorce and custody in his state.

What do I do?

A: You should immediately contact a qualified family lawyer in your community 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 craft a custody order. You may need to contest the custody action in his state, although his state likely can still order a divorce, a termination of the legal relationship between the two of you.


Q: What is a shared custody arrangement and how does it work?

A: In most states, any custody or parenting arrangement must be in the "best interests of the child," so each case will be handled differently depending on the circumstances. For example, parents who don't live close to each other will have a different arrangement than parents who live in the same city and school district. Shared custody arrangements can have many variations. There can be a primary residential parent and a non-residential parent who spends time with the child according to a standard visitation schedule. Some courts have also approved plans where the residential parent alternates annually, monthly or weekly. Parents can generally agree on a shared parenting plan, or each parent can submit his or her own plan to the court and allow the court to decide. Either way, the court must approve the plan.


Q: Who is the custodial parent when there is no court order and the parents aren't married?

A: It depends on state law. In many states, an unmarried woman who gives birth to a child is the sole residential parent and legal custodian of  the child until a court issues an order designating another person as the residential parent and legal custodian. In other states a "presumed father" may have rights to custody. A man becomes a "presumed father" by taking certain actions with respect to the child, including:

Signing an affidavit of paternity

Marrying or attempting to marry the mother

Taking the child into his home

Holding the child out as his child

A man who thinks he is the father of a child born out of wedlock normally shouldn't attempt to take custody of the child. If things go very badly, there is the potential for criminal charges.


Q: Will a court look negatively on my smoking around my child?

A: Most courts must look at all factors related to the "best interests of a child" in making a custody decision. At least one court has found a custodial parent's smoking to be a relevant factor in changing custody. In that Georgia case, the child was diagnosed with asthma after the divorce and the mother continued to smoke. The court held that the mother's continued smoking in the child's presence showed inadequate concern for the welfare of the child.

This, alone, may not be enough to require a change in custody, but it doesn't help. If your ex has shown an intention to use your smoking against you, stop smoking around the child. Better yet, stop smoking.


Q: Will moving in with another man ruin my chances of keeping custody of my daughter?

A: Adultery is a ground for divorce in most states. It also remains a crime in many states, although the criminal statutes are rarely enforced. With the advent of no-fault divorce in many places, adultery now plays less of a role in divorce cases overall.  Most states use some form of a "best interests of the child" standard to determine custody issues. Adultery may not have a direct effect on the custody decision, but may play an indirect role. Under the "best interests" standard, the court will consider your daughter's surroundings, which certainly includes her home life. Your child's relationship with the man with whom you're living, and how your relationship with him affects your daughter, will be relevant in the court's decision. Only one thing is just about certain with regard to adultery and divorce - it is almost never a good thing. It can harm you, and will likely never help you.


Q: Will the court allow me to change my child's last name to mine, from the father's last name, since her father isn't a major part of our daughter's life?

A: Changing a minor child's last name is governed by the "best interests of the child" standard in most states. Factors which are normally important include: The effect the name change would have on the child The effect of the change on the preservation and development of the child's relationship with each parent  The identification of the child as part of a family unit

The length of time the child has used a particular name

The child's preference if the child is old enough to understand

Whether the child's last name is different from the last name of the child's residential parent

The embarrassment, discomfort or inconvenience that may result when a child bears a last name different from the residential parent's

Parental failure to maintain contact and support of the child Any other factor relevant to the child's best interest


Q. When considering who should get custody of a child, what factors does a court look at?

In almost all situations, a court will keep one primary question in mind when deciding a custody case, namely, what is in the best interests of the  child? To answer this question, courts generally look at a number of different factors, such as:

• A parent's financial and physical ability to provide a child with essentials like food, medical care, shelter and clothing

• A parent's medical history, both physical and mental

• The child's age, sex and medical history, both physical and mental

• A parent's vocation and habits, including things like excessive drinking or smoking  • The child's choice if the child is of a certain age, normally 12 years old

• The emotional bond between child and parent

• The wishes of both parents

• The willingness of each parent to support the child's relationship with the other parent

• The level of adjustment needed from the child if forced to move to a new school, city, or state, and

• The quality of life the child enjoys in the child's current status quo, and

• Whether any parent has brought false or malicious charges of child abuse on the other parent.

If, upon looking at all of these factors, a court cannot decide what is in the best interests of the child, courts normally tend to look closely at which parent would most likely provide the child with a stable household. This can vary depending on the child's age. If the child is young, custody may go to the primary caregiver. However, if the child is older, custody may be awarded to the parent that is better situated to provide the child with access to education, friends, and social development.

Does it hurt my chances of getting custody of my children if I move out of the home and leave the children with their other parent?

In short, yes, it probably will hurt your chances of getting custody of your children. Parents that leave the home, even for good reasons, may have a lesser chance of getting custody of the children when it comes time to go to court. By leaving, the judge will see an implied message from the parent's actions. Also, assuming that the  parent left the family home, a judge will probably be more inclined to grant custody to the parent that is currently residing in the home so as to disrupt the children's status quo as little as possible.  However, if you take the children when you leave the home, this may send a message to the judge that you are trying to protect your children. If you do move away from home and take the children with you, you need to be sure to go to court as soon as possible so that it does not look like you are attempting to take the children away unlawfully. If you do not set up a court appointment soon after taking the children away from the home, the other parent may ask the judge to take the children away from you as you took them without court authorization.


Who is more likely to be awarded custody of a child, mothers or fathers?

Although it has not always been so, today's courts will generally award custody to whichever parent would be in the best interests of the child. However, in the past, custody of young children (typically under 5 years old) normally went to the mother of the child if the parents divorced. This rule has been phased out in almost every state, and instead, judges must decide on the merits of the case which parent having custody would be in the best interests of the child.

However, just because the rule has been phased out, that does not mean that parents cannot ask a judge to award custody to the mother. Sometimes parents will agree that the mother has more time and inclination to raise the children, and will stipulate to such an order. However, some fathers may only stipulate to this arrangement because they believe that the court already favors the mother, which is not true. Fathers have every right to ask for, and argue for, full custody of the children during a divorce. These days, both men and women commonly enter into the workforce full-time, meaning that the custody decision could be as simple as which parent could spend the most time with the child, all other factors being equal. For example, if a father works from home while the mother works a 60+ hour a week job as a corporate attorney, a judge may decide that the best interests of the child are to be with the parent that can spend the most time with the child, which would be the father in this example. Fathers are just as willing and able to be parents as mothers, and they can present that argument in court.


Q.Is custody always awarded to just one parent?

In short, no. It is very common for a court to award partial custody to both parents, otherwise known as joint custody. This type of custody arrangement normally falls into one of three forms. First, joint physical custody is where a court orders a child to spend a substantial amount of time with both parents during the course of the year. Second, joint legal custody is where, although one parent may have full physical custody, both parents must agree on any decisions that impact the child, such as their education, medical care and spiritual matters. Lastly, both joint physical and legal custody is a combination of the first two. It is ultimately up to the court to decide whether  any type of joint custody is in the best interests of a child. However, you, as a parent, have the right to argue for joint custody if you so wish it.


Q. Who will be the person deciding how much child visitation is fair and reasonable?

In general, the parent with primary custodial rights over a child will get to decide what kind of visitation for the other parent is fair and reasonable. In many situations, this works out well for both parents and they can often come to an amicable arrangement regarding visitation hours and days.

However, what is often in the news and on TV is a result of breakdown in communication between the parents. This usually happens when the parent with full custody of a child decides to be vindictive and uses the child as a weapon. To this end, the parent with custody will set the other parent's visiting rights at a bare minimum, often only for a few hours each week during the most inconvenient times. Some courts are allowing parents to make custody and visitation plans that the judge will sign into law. Parenting agreements, as they are called, are agreed upon visitation schedules and times where the child will be. These agreements can also include plans that deal with how decisions about the child will be made. For example, the agreement could include language that dictates that the parent with custody at the time of a medical emergency can make a decision about the child's health without consulting the other parent first. Parenting agreements are a great idea and you should look into it more carefully if you want to take full advantage of them.


Q. Is mediation better than a court setting for determining child custody arrangements?

Mediation is a great way to come to terms for a custody agreement instead of child custody lawsuits. The process of mediation works when the two parties, most of the time both parents in child custody situations, agree to sit down with a neutral third-party mediator. The mediator's job is to invoke discussion between the two parties and help them come to some middle ground on which to settle. There are some great advantages to using mediation over litigation. First and foremost, it is a lot cheaper. Mediation often does not require either side to bring an attorney with, not does it require witnesses or other court time. This can save lots of money on both sides. Second, mediation by itself improves communication between the two disputing parties. By opening an honest discussion, many times problems can be resolve and the child will benefit the most by having both parents thinking along the same lines.  Lastly, mediation is much faster than litigation. Litigation can often run for several months of court time, during which the fate of your child's upbringing causes you considerable stress. Mediation, on the other hand, often ends in settlement in as little as ten hours of discussion spread over two weeks.


Q: Will I be able to get joint or full custody?

I have 2 kids, one 12 and the other almost 11. They tell me they want to stay with me. Their mom did not put me on their birth certificate but I have been paying child support about 10 years. She does not let me see them except every other weekend. If I do get them other than that I have to argue with her. I deserve and want to spend more time with them.

A: 1) File an action to legitimate the children so that they will have the same rights as if they were born to a married couple; 2) File a custody action so that you can get a court order that specifies your visitation (or custody) with particularity. Then there will be no arguing about when they visit with you. It will all be set out in the court order


Q: If neither parent has legal custody can the other parent go take children from their aunt?

Aunt has custody legally through the court in North Carolina, can the other parent take the children? (Lexington, NC)

A: No, if the aunt has legal custody, then she has custody! You can't ust show up and take the children. If there was no court order then mother and father have an equal right to the children and this is why attorneys recommend that you file for a court order as soon as possible after a separation. You need to seek help from an attorney. If there has been a substantial change of circumstances that would justify filing a motion to modify custody, you can file the motion, prove your case (hopefully) and ask the judge to modify the custodial situation. The overall public policy goal is to get children back with their parent(s) and this is in your favor.


Q: Which type of custody agreement do I need to have my child with me and make him bring

her back? My daughter is now 6 months old. I thought we had an understanding that she would live with me and visit him. We agreed that I would give him the benefit of the doubt before I go to get a child support order. So I let her go visit and I started working. He was so understanding and accommodating that I let her stay for a little while longer than originally planned. She had a checkup and then I told him she had to come home. He says he can take better care of her up there with him than he can down here with me. We are in the same state but live in different counties. He does not want to have to help pay for childcare. He has threatened to run off with her.


Q: What can I do to establish barriers and rules that he understands?

A: His threat to "run off with her" gives you grounds to seek an Ex-Parte Emergency Custody Order. An attorney should be able to have a judge issue an order upon filing of a lawsuit that gives you immediate custody pending a hearing. You  would then be able to go get your daughter with the help of law enforcement, if necessary. At that point, you can deal with the other issues including child support. Child support


Q: How can I lower my child support?

A: You should check to see whether you are paying the proper amount of child support in accordance with the Guidelines. Since she is not working (and I assume has a child over the age of three), you can impute minimum wage to her. An advocate would be needed to help you do this because you have the burden of proving why you need to deviate from the guidelines. But a deviation could save you a significant amount of child support each month.


Q: Involuntary termination of parental rights?

My son is 10 and I have been married to my husband for 2.5 years. He wishes to adopt my son. Although he's always known where he is and how to reach me, his bio dad has only seen him a total of 6 times in his life all before the age of 2, and has never pursued legal visitation of any kind

A: To be successful with the adoption, you will have to either get him to consent or have his parental rights terminated.

Q: What are the grounds to award custody, to either parent by the courts?

Most states require their courts to determine custody on the basis of what's in the children's best interests, without regard to the parent's gender. Courts prefer mediation so that both the parents decide the type of custody granted to them with the approval of other spouse. As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children's daily needs.

Q: Does custody always go to just one parent?

No. Courts frequently award at least partial custody to both parents, called "joint custody." Joint custody takes one of three forms:
• joint physical custody (children spend a substantial amount of time with each parent)
• joint legal custody (parents share decision-making on medical, educational, and religious questions involving the children), or
• both joint legal and joint physical custody.

Q: Who determines how much visitation is reasonable and fair?

To avoid dispute between the parents and considering the well being of the children, many courts now prefer for the parties to work out a fairly detailed parenting plan that sets the visitation schedule and outlines who has responsibility for decisions affecting the children

Q: Is mediation the best approach to solving disagreements about child custody?

Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle a dispute. The mediator does not have power to impose a solution on the parties, but assists them in creating an agreement of their own. (In some courts, however, the mediator may be asked by the court to make a recommendation if the parties cannot reach an agreement. If you're concerned about whether the mediation is confidential or whether the mediator will be reporting to the judge.)
There are several important reasons why mediation is a superior method to litigation for resolving custody and visitation disputes.
• Mediation usually does not involve lawyers or expert witnesses (or their astronomical fees).
• Mediation usually produces a settlement after five to ten hours of mediation over a week or two. (Child custody litigation can drag on for months or even years.)
• Mediation enhances communication between the parents and makes it much more likely that they will be able to cooperate after the divorce or separation when it comes to raising their children. Experts who have studied the effects of divorce on children universally conclude that when divorcing or separating parents can cooperate, the children suffer far less.

Q: What are the various types of Child Custody?

There are mainly four types of the Child Custody
1.Physical custody means that a parent has the right to have a child live with him or her. Some states will award joint physical custody to both parents when the child spends significant amounts of time with both parents. Joint physical custody works best if parents live relatively near to each other, as it lessens the stress on children and allows them to maintain a somewhat normal routine.
Where the child lives primarily with one parent and has visitation with the other, generally the parent with whom the child primarily lives will have sole physical custody, with visitation to the other parent

2.Legal custody of a child means having the right and the obligation to make decisions about a child's upbringing. A parent with legal custody can make decisions about schooling, religion, and medical care, for example. In many states, courts regularly award joint legal custody, which means that the decision making is shared by both parents.
If you share joint legal custody with the other parent and you exclude him or her from the decision-making process, your ex can take you back to court and ask the judge to enforce the custody agreement, if .
If you think you have circumstances that make it impossible to share joint legal custody (the other parent won't communicate with you about important matters or is abusive), you can go to court and ask for sole legal custody. But, in many states, joint legal custody is preferable, so you will have to convince a family court judge that it is not in the best interests of your child.

Sole Custody One parent can have either sole legal custody or sole physical custody of a child. Courts generally won't hesitate to award sole physical custody to one parent if the other parent is deemed unfit -- for example, because of alcohol or drug dependency, a new partner who is unfit, or charges of child abuse or neglect.
. Even where courts do award sole physical custody, the parties often still share joint legal custody, and the noncustodial parent enjoys a generous visitation schedule. In that situation, the parents would make joint decisions about the child's upbringing, but one parent would be deemed the primary physical caretaker, while the other parent would have visitation rights.
.Joint Custody :Parents who don't live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
• joint legal custody
• joint physical custody (where the children spend a significant portion of time with each parent), or
• joint legal and physical custody.
It is common for couples who share physical custody to also share legal custody, but not necessarily the other way around.
. Joint Custody Arrangements
When parents share joint custody, usually they work out a schedule according to their work requirements and housing arrangements and the children's needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent's house or apartment. Other joint physical custody arrangements include:
• alternating months, years, or six-month periods, or
• spending weekends and holidays with one parent, while spending weekdays with the other.
There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is called "bird's nest custody."

Q:How joint Custody is more beneficial to the Child?

Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent.
There are, of course, disadvantages:
• Children must be shuttled around.
• Parental noncooperation or ill will can have seriously negative effects on children.
• Maintaining two homes for the children can be expensive.
If you do have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing, and medical care. At some point your ex may claim she or he has spent more money on the kids than you have, and a judge will appreciate your detailed records.

Q: Who decides the parenting plan and visitation schedule?

If you and your child's other parent can agree on a parenting plan and visitation schedule, you can submit it to the court for approval. As long as it's reasonable, the court will approve it, and it will become an enforceable court order. This is a great option because it means that you can decide on the best parenting arrangement for your family -- and you know your family's needs a lot better than the judge does. When you make your own parenting plan, make sure you deal with details like who will take care of the kids if they have an unexpected day off from school and how you'll divide holidays and school vacations. Leave room for changes as the kids grow older and their needs change -- you can put a provision in the agreement that says that, as long as you write down changes and you both sign them, they're enforceable just like your original order. That way you don't have to go back to court every time you want to make a change. To learn more about making parenting agreements

Q: Who will decide the visitation schedule?

If both the parents can agree on a parenting plan and visitation schedule, they can submit it to the court for approval. As long as it's reasonable, the court will approve it, and it will become an enforceable court order. This is a great option because it means that you can decide on the best parenting arrangement for your family -- and you know your family's needs a lot better than the judge does. You can put a provision in the agreement that says that, as long as you write down changes and you both sign them, they're enforceable just like your original order. That way you don't have to go back to court every time you want to make a change.

Q: How can abuse be prevented during visits with the children?

When a noncustodial parent has a history of violent or destructive behavior, especially toward the child, the court often requires that visitation between that parent and the child be supervised.

Q: What does "reasonable visitation" mean?

If you've already agreed to reasonable visitation and it isn't working out -- for example, one parent is consistently late, skips scheduled visits, or doesn't inform the other parent where he or she is planning on taking the children -- you can go back to court and ask that the arrangement be changed. Parents have to cooperate and communicate frequently for the reasonable visitation approach to succeed. If you suspect that a loosely defined reasonable visitation won't work, insist on a fixed schedule and save yourself time, angst, and, possibly, money.

Q: What is a fixed visitation schedule?

Sometimes courts will set up a detailed visitation schedule, including the times and places for visitation with the noncustodial parent -- for example, every other weekend or every Tuesday and Thursday evening. A court will be inclined to order a fixed schedule if the hostility between the parents is so severe that the need for regular contact between them may be detrimental to the child. A fixed visitation schedule can still be generous, but it removes opportunities for one party to control the other's time and allows the children to experience predictability in an often unsettling period.

Q: Are grandparents entitled to visitation?

Sometimes grandparents and others (foster parents and stepparents; for example), can ask a court to grant them the legal right to maintain their relationships with their grandchildren.

Q: What should I do if I want to limit my child's visitation with grandparents?

Your child's grandparents may take you to court to try to force visitation. If there is a reason why your child should not visit with a grandparent, by all means raise the issue in court. But make sure the reason is one affecting your child's life and not your own needs, pride, or anger. However, before you end up in court, try to reach a solution that works for all of you. A mediator can help you reach a visitation agreement.

Q: What should I do if my grandchild's parent wants to limit my visitation?

Grandparents who face parental resistance to their contact with grandchildren might consider requesting a mediation session with the children's parents.
If mediation doesn't work and you end up in court petitioning for visitation rights, be prepared to testify about your relationship with your grandchildren, your relationship with the parents, any custody or visitation arrangements you had before the court action, and the last time you saw your grandchildren. Also, be prepared to discuss your personal history, including any medical troubles or problems with the law. Remember that the court is scrutinizing you to decide whether you should spend time with a child -- and the judge won't hesitate to pry into personal matters. The children's welfare is always given the highest priority, although the courts also give great deference to a parent's decision to limit visitation.

Q: Who will decide that custody will be given to mother or father?

The natural parents of a child are presumed fit in the absence of evidence to the contrary. Once the judge has "evidence" of unfitness, he or she can order an evaluation and a guardian where the children's welfare is always given the highest priority. Q: Can a father stop paying child support? No, the law is mostly on mother’s side on the issue of child support. Law presume that a child born to a marriage is the child of that marriage. Courts hold that presumption is conclusive -- meaning it cannot be challenged. Also, some courts have ruled that a man who acts like the father should be treated like the father -- called the equitable parent doctrine -- even if he is not the biological father.