In general, child custody refers to the set of legal rights that are granted to a biological or adoptive parent upon receiving custody of their child in a divorce or legal separation setting. For example, a parent that has legal custody over their child will have the right to make important legal decisions on behalf of that child.
Examples of important decisions that a parent possesses when they have legal custody over their child include, but are not limited to:
- The right to make educational decisions for their child, such as what type of school they go to, what type of courses the child should take, and other educational choices;
- The right to make religious decisions regarding what religion to raise the child in, if any;
- The right to make legal decisions on behalf of their child, such as whether or not to enter into certain legal contracts on behalf of their child or represent their child in a lawsuit;
- The right to make medical decisions for their child, such as whether or not their child should undergo invasive and noninvasive procedures;
- The right to make decisions regarding the psychiatric treatment for their child.
What Is a Child Custody Arrangement?
Although the exact laws concerning child custody arrangements will differ by state, in general, a child custody arrangement refers to the legal right of a parent with physical custody to possess and live with their child or children.
With a child custody arrangement, each parent will have a court-ordered or approved schedule by which they are entitled to possess their child. However, one parent will typically be granted primary custody of the child for insurance, tax, and educational purposes. Generally, the parent’s residence that has primary physical custody of the child is considered to be the child’s primary residence.
It is important to note that a child’s biological parents are automatically granted certain legal rights over their child or children. Further, courts tend to follow the precedent that spending time with both parents is in a child’s best interest. When making a child custody decision, courts may make certain presumptions when reaching a final decision regarding child custody.
What Are Child Custody Presumptions?
Depending on which state laws in which a person resides, there may be certain child custody presumptions incorporated into the state laws. For instance, many states have presumptions in their family law statutes regarding what is considered to be in a child’s best interest. Family law court judges will then utilize the presumptions in the statutes when making child custody determination in accordance with the child’s best interest standards.
The Child’s Best Interest Standard is a standard that all courts adhere to when making decisions regarding children and child custody. Under the standard, any decisions that will affect a child, such as child custody or visitation rights, should ultimately benefit and protect the child. As such, when determining custody decisions, the court will consider all of the following:
- The child’s background, such as their sex, age, personal health characteristics, and special needs;
- The child’s own preferences, if they are old enough according to their state’s guidelines to make a decision regarding their living arrangement.
- Generally, a child must be at least twelve years old;
- Environmental factors, such as the quality of education in each parent’s school district, the safety of each parent’s neighborhood, and each parent’s proximity to the child’s extracurricular activities;
- The physical and mental health of each parent, as well as their ability to provide emotional and financial support for the child while the child is in their care;
- The stability of each parent’s lifestyle, background, and employment;
- The existence of and level of attachment to other family members in the home, such as siblings or grandparents; and/or
- Each parent’s commitment to facilitating an ongoing and healthy relationship between the child and the other parent.
Generally, most laws concerning child custody believe that it is in the child’s best interest to have a joint custody arrangement, where the child is able to spend time with both of their parents. This means that there is a rebuttable presumption that joint custody and equally shared parenting time are in the best interest of the child.
As such, if one parent is seeking to have sole custody of a child, then they will have to rebut the presumption that joint custody is in the best interest of the child. This is generally done by showing evidence that there has been some sort of abuse in the relationship, or that the parent is unfit to raise a child in some way.
Historically, there was a presumption that it was in the child’s best interest to grant the mother physical custody over their father. However, this preference based on the sex of parents has been abolished by state laws, and is no longer presumed to be in a child’s best interests.
One presumption that heavily affects child custody is presumptions of paternity. Legally speaking, a father who has not established paternity has no legal right to a child, without first establishing legal paternity.
For unmarried biological fathers, there is no presumption of paternity. This means that unwed fathers are not by default assumed to be biologically related to their child. Because of this, unmarried fathers can be prevented from being awarded child custody or even child visitation rights, unless there is an accepted acknowledgement of paternity.
At first glance, this seems to be incredibly discriminatory and unfair to the unmarried father. However, historically this system was established as a means of preventing unmarried mothers from pursuing child support from the father, which would be unfair without first establishing paternity so the father may receive rights.
It is important to note that when a couple is married, there is a presumption that the child was born of the marriage. This means that if a married couple has a child, the father is presumed to be the wife’s husband. However, this is not always the case. Therefore, the paternity presumption is rebuttable, and the husband may submit to a paternity test to either prove or disprove paternity.
How Are Child Custody Presumptions Rebutted?
As mentioned above, child custody presumptions are rebuttable by a preponderance of the evidence. This means that a parent that is seeking to rebut a presumption that may be utilized by a court when determining child custody may provide evidence that the presumption should not be utilized in their particular case.
For example, in the case of disputing a joint custody arrangement, that may not always be in the best interests of the child, which is the typical presumption. Joint legal custody exists when both parents agree on all major decisions regarding the child. Joint physical custody refers to the amount of time each parent spends with the child.
Courts will typically favor a joint custody arrangement because it is generally presumed to be in the child’s best interests for both parents to remain involved in all aspects of their child’s life. However, examples of evidence that may rebut that presumption may include:
- Evidence that the parents live far away from each other, which makes it difficult to evenly split physical custody;
- Evidence that a joint situation would disrupt the child;
- Evidence that a joint situation would conflict with the child’s school schedule;
- Evidence that the child prefers one parent over the other and is old enough to have such a preference be considered by the court;
- Evidence that reasonable time with each parent is not otherwise attainable, such as one parent being imprisoned or in the care of another party themselves; and/or
- Evidence that there is a history of abuse, drug use, or other evidence that tends to show one parent is unfit.
Do I Need a Lawyer for Help With Rebutting Child Custody Presumptions?
As can be seen, there are numerous presumptions that may be taken into consideration when determining the legal custody of a child or children. As such, if you are going through a divorce with children or if you are going through a legal separation, it is in your best interests to consult with an experienced child custody lawyer.
An experienced child custody attorney will be able to help you understand your state’s specific laws on child custody, including any child custody presumptions that are utilized by your local family law court. Additionally, an attorney will also be able to help you gather evidence to rebut any child custody presumption which may be unfavorable to your particular case. Finally, an attorney will also be able to represent you in court, as needed.
