Child custody can be an explosive topic in the midst of a divorce. Emotions are likely at an all-time high, and adding in the extra stress of deciding which child goes where, for how long, and when can become an all-out war.
Some parents may be able to make custody decisions on their own or with professional assistance from a family lawyer or mediator with experience in child custody law. In this instance, there is no need for a judge to be involved in the decision. A lawyer or other professional can help write up the agreement, and a judge will typically sign the agreement to make it legally binding.
Most child custody law agreements will contain the following details:
- Where the child will live
- Whether one parent will have primary physical custody
- Who will make major decisions regarding child’s upbringing
- Visitation rights
- How and where the child will spend their holidays
- How will contact with grandparents and other relatives or friends be handled
Types of Child Custody
There are many different types of custody arrangements parents or a judge may decide on, depending on the individual needs and circumstances of the child. Physical custody is usually awarded to one parent, determined by who the child will live with most of the time. Legal custody is usually awarded to both parents on an equal basis. Legal custody includes the right to make decisions regarding the child’s education, health, and religion.
Sole Custody: An agreement when one parent has exclusive physical and legal custody of the child. This type of agreement is typically awarded when the other parent has been deemed unfit or incapable of caring for the child.
Joint Custody: An agreement when the child spends an equal amount of time with both parents.
Split Custody: An agreement when multiple children are involved, giving one parent custody of some of the children and the other parent custody of the remainder.
Unmarried Parents: According to findlaw.com, most states award the mother sole custody of the child unless the father legally pursues custody.
Best Interest Standard
If parents are unable to agree on custody terms, the question of custody will need to be made in court by a judge. According to Sherry Cross, a family law attorney in Los Angeles, “An important factor in a judge’s custody decision is what would be in the best interest of the child.” Although child custody law varies from state to state, the child’s best interest remains the underlying current across the nation.
When considering what is in a child’s best interest, a judge will often consider the following:
The child’s current primary caretaker: A judge may give preference to the current caretaker in order to keep a sense of stability and continuity in the child’s home life.
The physical and mental health of the parent: An unhealthy parent may have difficulty meeting all of the physical and emotional needs of the child.
The parent’s ability to support the child financially: A judge may consider the parent’s job history and income in making a custody decision.
A stable home environment: Consistency and stability are important to a child’s overall health, well-being, and education.
What will require the least adjustments to school and community: A judge may give preference to a parent who chooses to remain in the same school district, versus a parent who plans to move away from the child’s current support system.
The preferences of the child: If the child is old enough to offer their opinion, the judge may take it into consideration when making a decision.
Stability in religion and culture: Continuation of the child’s current religion and culture would offer the most stability.
Violation of Custody Agreement
Legally, parents have an obligation to abide by any temporary or permanent custody agreement signed by a judge. In addition to causing increased conflict and heightened emotions between parties, violating an agreement could result in criminal charges, fines, or loss of custody and/or visitation rights.
Breach of custody agreement
- Withholding visitation or not complying with the agreement in any other form is considered a breach of the custody agreement. Regardless of the motives, the custody agreement should be honored. Any concerns or desired changes should be pursued in the court system.
- A parent should have gathered credible evidence of the agreement violation before pursuing retribution from the court. A judge will not be able to do much without sufficient evidence. The judge is not interested in playing referee, so whatever the breech of agreement was should be enough to warrant his/her time and attention.
Motion to comply/motion for contempt
- If a noncompliant parent disobeys the custody agreement, the other parent can file a motion in court to require the noncompliant parent to abide by the terms of the custody agreement. If the judge finds the parent noncompliant, they are considered guilty of contempt and can face penalties.
Penalties for noncompliance
- A noncompliant parent may be ordered by a judge to pay for any legal fees the other parent has incurred because of the breach.
- A judge may grant additional visitation time to make up for missed time due to noncompliance.
- A judge may revoke or reduce custody rights of the noncompliant parent.
- The noncompliant parent may be held in contempt of court and/or face criminal penalties, such as jail time or fines.
Divorce with children can be difficult and stressful. It is extremely important to gather a good support team around yourself and your children during this time. Staying as positive as possible around your children will help them through the process and can help minimize the impact that a major life change such as divorce may impart. Knowing your rights and the rights of your children, as well as understanding child custody law, is a great first step in being their advocate and making decisions that are in everyone’s best interest.