Child Custody - Parental Custody

The Way to Win Child Custody Child Custody Rights

There's a sure-fire way to win in child custody. That way is not to go to war and work peaceably with the other parent to work out an arrangement in the child's best interests. The best outcome is produced when the parties can cooperate in the best interests of the child; so that an outcome can be reached in which everyone involved is a winner. If this were possible in every case, there would be a lot less money being spent on family law lawyers to litigate custody issues.

It's very unfortunate when children are used as ammunition in a battle between the parents, and the children wind up paying a high price. But in the heated emotional environment that often arises during a divorce, some spouses are unable to put aside their hostilities and put the child's needs first. Some parents will try to turn the child against the other parent, which can lead to parental alienation. It's always best not to speak badly about the other parent to a child, even if the negative statements that may be made are valid. In some cases, the judge will issue a goodwill order to restrain parents from expressing negative opinions about the other parent to a child.

As part of a divorce proceeding, a parenting plan can be created by the parent agreeing to sole custody or joint custody. Even when shared parenting is ordered, one parent may be designated as having primary custody when the child will spend the majority of time with that parent and his or her home will be the primary residence. Typically, when child support is ordered, it is granted to the parent with sole custody or primary parent. Child support may be agreed on by the parties or ordered by the court, often using state child support guidelines. Unless good cause exists not to, the court will typically grant visitation to the parent without primary or sole custody.

A family law court will decide child custody matters based upon the best interests of the children involved. Under common law principles, both parents have equal rights and access to a child. When parents separate or divorce, there is a presumption that joint custody is in the child's best interests. However, this presumption can be overcome by mutual agreement by the parents to give sole custody to one parent, or when evidence shows that one parent's custody is against the child's best interests. In order to show that a child's welfare would be harmed by granting a parent custody, evidence of parental unfitness may be introduced. Such evidence may include issues such as the following:

  • Domestic violence
  • Child abuse or child neglect
  • Illegal drug use
  • Excessive drinking or alcoholism
  • Criminal activities
  • Mental illness
  • Lack of visitation and/or providing child support
  • Incarceration
  • Lack of proper, stable residence
  • Chronic health issues

They may be other factors considered by the court, but these are the ones most commonly raised. These issues may be raised during an original proceeding for dissolution of marriage, or may be raised as apart of a motion to modify child custody. They are also sometimes raised in a proceeding to terminate parental rights. These types of proceedings can be very emotionally charged due to the acrimonious litigation involved, and it's best to not involve the child whenever possible. In some states, the judge will allow a child of a certain age to express their preferences for custody. If the child testifies, this is normally done in a setting such as the judge's chambers, where the child isn't exposed to the rest of the testimony and accusations made in the proceeding. In some cases, an evaluation will be completed by a court-appointed psychologist or other professional. The evaluator may interview the parents, child(ren), and visit the residences of the parties involved, in order to prepare a report for the court's consideration.

Once the original child custody order is issued as part of a final divorce decree, it can only be modified by the court upon a showing of a significant change of circumstances or a stipulation by the parties in a joint motion for change of custody. Even if the parents voluntarily agree to change child custody, it will not be enforceable under the law unless it is incorporated into a court order. If there is a court order on the issue of child custody, it is enforceable in court through a motion for contempt or a show cause motion if the order is violated. If there is merely a verbal or written agreement between the parents, it will not be enforceable in court.

US Legal Forms offers affordable, top quality child custody forms for seeking sole custody or joint custody. We also have a vast selection of related forms, such as parenting plans, modification of child custody motions, and state-specific divorce packages.

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