Child custody describes a legal relationship between a parent and their child or children. The parent who is granted legal custody rights over their child during a divorce is given the rights and responsibilities of making decisions regarding the child’s well-being and upbringing.
Typically, these decisions include the child’s:
- Education;
- Health care;
- Discipline;
- Religion; and
- Who the child associates with.
Physical custody is the right of a parent to have their child physically reside with them. An individual is not necessarily required to have physical custody over their child in order to have legal custody.
For example, a child may reside with one parent half of the time and the other parent the other half, but one parent still retains full legal custody.
What Are Child Custody Proceedings?
Child custody proceedings are family law hearings during which custody rights are determined. In addition, there are other issues related to child custody that may be resolved during these proceedings, including:
- Identifying which children are included in the custody arrangement;
- Examining the capabilities of each parent in terms of child-rearing and each parent’s ability to provide for the child;
- Determining if there are any factors that would disqualify one of the parents from being granted custody rights;
- Determining what sort of child custody arrangement would work best, for example:
- split custody;
- sole custody; or
- other arrangements;
- Resolving violations related to child custody agreements, for example:
- parents failing to provide access during custody transfer;
- taking the child out of the country without permission; or
- other issues; and
- Addressing concerns related to visitation rights and schedules.
What Is the Child’s Best Interest Standard?
Child custody issues are some of the most important types of determinations that courts have to make related to family law issues. Child custody laws may be complicated.
In addition, the state laws that govern these issues may vary. Courts must carefully determine custody rights decisions, as they can have a profound impact on the child that may last a lifetime.
When a court is making decisions related to children, the child’s best interest standard is used. This means the law places the child’s interests before any of the personal preferences of the parents.
This means that the court will only make a child custody decision if it benefits the child or children. The court will also consider the child’s health, safety, and welfare.
Generally, the following factors will be used to determine the child’s best interests in custody proceedings:
- The child’s background, which may include their:
- sex;
- age; and
- personal health characteristics;
- For example, a child with special needs or disabilities may be accustomed to a certain home or parent who provides for their daily specialized needs;
- The child’s preferences, if they are old enough to state their preferences. However, the child’s preferences are not necessarily a substitute for other factors;
- Environmental factors, including:
- the quality of the education provided in each parent’s school district;
- the safety of each parent’s neighborhood; and
- other relevant factors;
- The physical and mental health of each parent;
- Each of the parent’s ability to provide for their child’s emotional and financial needs;
- It is important to note that a parent who is financially struggling will not necessarily be prevented from obtaining custody of their child because of their financial status; and
- The stability of the lifestyle and background of each parent.
Child custody hearings are usually addressed in separate hearings that are dedicated to each issue that needs to be resolved. Child custody, however, may be determined in other related hearings, for example, legal separation or divorce proceedings.
Therefore, if a parent is considering how they can get custody of their child, they will be required to prioritize their child’s best interests, as this is what a court does during the custody hearing.
What Are Some Common Child Custody Issues Specific to Mothers?
In previous years, mothers were commonly granted custody rights almost as a default because it was assumed that the mother was the main and best caregiver. However, as gender roles have changed over time, a court will now consider which of the parents is best suited to the needs of the child, regardless of their gender.
When a court is determining the mother’s rights to child custody, the court will first and foremost examine whether the child was born out of wedlock. A court will consider whether or not the mother was married first because, by law, child custody is automatically granted to an unwed mother.
If, however, granting the mother custody would not be in the best interests of the child, the biological father has the right to pursue child custody rights. If the child’s parents were married at the time of the birth of the child, the determining factor in custody decisions would be the child’s best interests.
This is because the majority of custody laws are gender-neutral, which means they do not favor the mother over the father. In addition, another common child custody issue that a woman may face is another party who is seeking custody of the child.
For example, the parents of the mother may be seeking custody as grandparents. The biological father or the child’s paternal grandparents may also attempt to have the mother deemed unfit in an attempt to be awarded child custody.
Another issue that a mother may face involves the visitation rights of other parties who may be involved in the child’s life. For example, the child’s biological father or grandparents may seek to enforce visitation rights, even against the mother’s wishes.
What Are Child Custody Agreements?
During child custody proceedings, the court will create a formal child custody order that is legally enforceable. These agreements outline the various guidelines for the custody arrangement, including:
- Which parent has primary custody;
- Whether visitation is allowed; and
- Other issues.
If the parents are able to create an agreement on their own, the court will usually honor whatever terms the parents agreed to, so long as they are in the child’s best interests.
If the parents cannot create an agreement on their own, the court may need to intervene to help the parties arrive at a suitable arrangement. If the parents create their own agreement, it is important they submit it to the court for approval so it becomes legally enforceable.
A custody agreement is very important for the safety and well-being of a child. For example, if a custody agreement is not yet in place and the father takes the child without the mother’s knowledge or permission, it may be difficult to determine if a violation has occurred.
Also, if there is no agreement in place and the mother takes the child, the court will have to evaluate the overall situation to determine if any custody rights were violated. For more information, see the following LegalMatch article: Child Custody Agreements.
Should I Hire an Attorney for Help with Child Custody Matters?
As you can see, child custody for mothers often involves many different legal issues, whether they are married or unmarried. In addition, child custody laws may vary by state.
Because of this, it is in your best interest to consult with a well-qualified and knowledgeable child custody lawyer in your area if you are having any child custody issues. Your lawyer can advise you on the best course of action for obtaining custody of your child.
In addition, your lawyer can advise you of your legal rights in your state as a mother. If you are required to go to court to establish custody, your lawyer will represent you.
