Child Custody | Family
The Ultimate Guide to Child Custody
by Unbundled Legal Help
- Child Custody Overview
- Who Gets Child Custody
- Emergency Child Custody Issues
- Child Custody for Parents in Different States
- Child Custody Arrangements
- Child Custody Modification
- Child Custody Enforcement
- How to File for Child Custody
- Child Support
- Parenting Plans
- Child Custody Mediation
- Child Custody Evaluations
- Child Custody—Frequently Asked Questions
- + What makes a parent unfit?
- + Can an unfit parent ever regain child custody?
- + Do family judges favor mothers over fathers?
- + Can a mother seek child support without establishing paternity?
- + How can fathers better their chances of getting 50/50 custody?
- + Is child custody determined in the same manner for same-sex parents?
- + What do I need to prove to get emergency child custody?
- + If my child’s other parent is incarcerated, are they still required to pay child support?
- + If my child’s other parent isn’t paying child support, can I withhold visitation?
- + What happens to child support if the parent paying support passes away?
- + Can child support continue past the age of 18 if the child is a dependent, full-time student?
- + Does my child’s opinion influence the court’s decision?
- + What is a Guardian ad Litem?
- + Can my child choose which parent they want to live with?
- + Will my child need to appear in court?
- + Can I expect my child to be involved in the custody process in any capacity?
- + Is an agreement in child custody mediation binding on all parties?
- + Should I talk to my child prior to a child custody evaluation?
- + What happens if my child doesn’t want to spend time with their other parent?
- + If a parent remarries, does that affect child support?
- + Can a parent move out of state with their child, or do they need permission first?
- + If I’m awarded custody, can I automatically expect to receive child support?
- + Does military service affect a parent’s ability to get child custody?
- + If one parent moves out of the family home before a divorce, will this affect that parent’s ability to get custody later on?
- + Can the judge order parents to get counseling?
- + Do stepparents ever have any legal rights to their stepchildren?
- + Can grandparents get any type of custody or visitation?
- + Can an individual get custody of a child they are not related to?
- + What factors affect how long my child custody case will take?
- + How should I prepare for my child custody case?
- + What happens with child support if the father retires?
- + Can I file for child custody without legal representation?
- + What questions should I ask my child custody lawyer?
- + How can a custody lawyer help me?
- + How much does a custody lawyer charge?
- + How can an unbundled lawyer help me with my child custody issues?
- + How much does an unbundled lawyer cost?
- + Can an unbundled lawyer help me if I need more extensive help with my child custody case?
- Contact Unbundled Legal Help Today
Children provide an irreplaceable light in their loved ones’ lives, and parents aim to nurture, protect, and love their children at all costs. When facing a divorce or other life-altering event affecting child custody, parents don’t hesitate to engage in a custody battle. Children’s lives and futures often depend on the result of child custody disputes.
If you’re facing a custody battle, consider the information here regarding child custody. Child custody disputes can be challenging, but a better understanding can prove beneficial for you and your children in the long run. We can connect you today with an unbundled child custody attorney in your area to understand your best way forward.
Child Custody Overview
Child custody is not “one-size-fits-all.” The court will consider many factors when determining the ideal custody arrangement for a child. “Custody” does not have a singular meaning, as there are various types of custody regarding children.
Understanding the Best Interest of the Child
During your child custody proceedings, you’ll hear the phrase “best interest of the child” used frequently. With issues involving children, the court will always strive to do what is best for the child, no matter what.
The best interest of the child is the legal standard for child and family law. Specifics vary by state, but every state has considerations the court must make when it determines the child’s best interests. Some factors shared by various states include the following:
- The mental and physical needs of the child
- The relationship the child shares with their parents and siblings
- Each parent’s ability to provide for the child
- Each parent’s mental and physical health
Any decisions made during your custody battle must be made with your child’s overall welfare and future in mind.
Types of Child Custody
There are four types of child custody: physical, legal, sole, and joint custody.
Physical vs. Legal Custody
Physical custody deals with where the child physically lives. One parent can have physical custody, or both parents can share it. Many cases involve one parent, the “custodial” parent, having primary physical custody, with the other parent, the “non-custodial” parent, having visitation rights.
Legal custody refers to the ability to make critical decisions regarding a child’s life. When a parent has legal custody, they may make the big choices for their child’s wellbeing and upbringing, including decisions such as these:
- What doctors the child visits
- What schools the child attends
- What religion the child practices
Legal custody is often shared by parents, affording both parents the right to make critical decisions for their child’s future.
Sole vs. Joint Custody
When a parent has sole custody, they have exclusive physical and legal custody of their child. Sole custody is typically granted when a judge feels one parent is unfit and incapable of taking care of their child in any capacity.
Joint Custody gives both parents rights to their child. Joint custody can involve joint physical custody, legal custody, or both. Joint custody is an ideal situation, giving the child valuable time with both parents.
To learn more about the different types of child custody see our article here
If a parent does not have physical custody of their child, a judge may grant them visitation rights. The extent of a parent’s visitation rights depends on the situation.
Supervised vs. Unsupervised Visitation
If a judge believes a parent should have supervised visitation, they are not to be left alone with their child. While the parent visits with their child, another adult must be present at all times.
Supervised visitation must be arranged, and often occurs at a family member’s home, a park, or a family visitation center. The supervisor can be a trusted family member, social worker, or counselor.
Unsupervised visitation is the most common. Parents are allowed to spend time with their children, often based on a visitation schedule. Unsupervised visitation can be just a few hours or multiple days.
Types of Child Custody Orders
There are typically three types of child custody orders the court may enter into:
- Temporary orders
- Final orders
- Emergency orders
Parents often file for temporary orders during their divorce. At the inception of their divorce case, one party may ask the court for temporary orders, one of which includes issues regarding child custody and support.
When a judge grants a temporary custody order, the judge decides its duration. They may give it an expiration date, modify it, or replace it with a final order. Temporary orders often become permanent if parents, children, and judges agree it is a good fit.
A final order comes at the end of a case. It memorializes critical decisions regarding custody, child support, and parenting. If parents can agree, they can create their own final arrangements and present it to a judge for approval. If they are not able to decide, the judge can create a plan and finalize it.
Final child custody orders are permanent. A final order will only ever change or expire when:
- The child turns 18
- The child emancipates
- A parent petitions the court to modify the order
Outside these events, both parties must respect and follow the final order. If a parent disregards a final order, the other parent can ask the court for help, and the parent may face repercussions.
Emergency, or ex parte, orders involve issues the court must handle expeditiously because of concerns for a child’s safety and wellness. An emergency order, if granted, will give a parent temporary custody until the judge can decide on a more permanent fix.
To learn more about the different types of child custody orders see our article here
Who Gets Child Custody
Just because an individual is a mother or father does not mean they are automatically entitled to custody of their child. Who gets custody will depend on many factors, and a judge will determine based on the circumstances.
What Factors Influence Who Gets Custody of a Child?
Family law judges do not take custody lightly. Therefore, when determining who is entitled to custody and to what extent, they will look at many factors before making a decision.
Here are some details they will consider:
- The age of the child
- The child’s health, mental and physical
- The relationship the child has with each parent
- Each parent’s ability to provide for their child
- The child’s possible living arrangements
- The mental and physical health of each parent
- Each parent’s wishes
- The wishes of the child, if they are old enough
- Which parent has been the primary caretaker until this point
- The level of adjustment the child must endure
- Allegations of abuse or neglect, if any
The criteria judges base their decisions on will also depend on state law.
Child Custody for Unwed Parents
Even if they are unmarried, both parents still have rights to their children.
In most states, when an unwed mother has a child, she automatically has sole physical and legal custody. This does not mean the father has no rights. He will, however, have to take certain steps to establish paternity before the court will grant him rights.
Every state requires fathers to establish paternity before they are afforded any rights. Confirming paternity can be done in different ways. In some states, both parents signing the child’s birth certificate is sufficient to confirm paternity. In other states, the mother and father must complete, sign, notarize, and file an affidavit with the court confirming the father’s paternity.
If either parent questions the father’s paternity, they can agree to engage in genetic testing, or a judge can order a DNA test.
Once paternity is established, fathers face child support obligations, and they can proceed with their pursuit of child custody.
Emergency Child Custody Issues
There are usually strict, and often lengthy, procedures involved in child custody proceedings. However, under some emergency circumstances, decisions must be made much quicker for the child’s safety.
If a child’s life or health are at risk, the court may grant emergency child custody. These are situations the court will consider:
- Child abuse
- Child neglect
- The child is in the presence of a sex offender
- The child is exposed to drug use
- Fear of kidnapping
- Any risk of child endangerment
An emergency child custody situation won’t give you permanent custody, but rather temporary custody for a short time.
Filing for Emergency Child Custody
To seek emergency custody of a child, you must file a petition with the court citing your reasons. Depending on the situation and the laws of your state, the judge may schedule an emergency hearing, or they may grant your petition without a hearing.
The temporary custody afforded in an emergency is only valid until the judge can schedule a more formal hearing. There, the judge can further investigate and give the opposing party the chance to defend against these claims. Once the judge has heard both sides, they may decide to make the temporary custody more permanent or create a different custody arrangement altogether.
Child Custody for Parents in Different States
Parents are not obligated to live in the same city or state to have custody rights. Sometimes, parents may decide to move, but would still like to keep rights to their children. Even if parents live in different states, it is still possible to have a child custody agreement that works for both parents and the children.
Sometimes a 50/50 child custody split between parents is not possible with parents in different states. Child custody time splitting will often give one parent more time with the child, depending on the child’s primary residence.
Filing for Custody with Parents in Different States
Parents can agree on where they’d like to file for child custody. Usually, parents would file for child custody in the state where the child primarily resides. If parents cannot agree, courts can rely on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
The UCCJEA limits the states that have jurisdiction over the child custody proceedings. Under the Act, the court makes final child custody determinations in one state, and their decisions can be upheld in one other state. The act aims to limit conflict and initiate a resolution.
The Act provides the child’s home state with exclusive and continuing jurisdiction for child custody matters. Under the UCCJEA, a child’s “home state” is where the child has lived for at least six consecutive months before the child custody proceedings began. If the child does not have a home state, the court will look at other details, including where the child has “significant connections.”
Visitation Schedule Considerations for Parents in Different States
When creating a visitation plan for parents in different states, these are some factors the courts will consider:
- Travel – Parents in different states means plenty of travel for your child. Consider the best and most convenient mode of transportation between homes.
- Expenses – Travel can get expensive. Consider whether one parent will be entirely responsible for travel expenses, or instead whether parents will split costs.
- The child’s normal schedule – You don’t want to disrupt your child’s schedule too much. Keeping the child’s everyday routine in mind can help minimize chaos. Evaluate how the child can spend time with both parents without changing their schedule radically.
- The child’s age – A child’s age can play a vital role in visitation arrangements. It is difficult when a child is very young. Try to come up with a visitation schedule that suits the child’s age and needs.
- The child’s ability to adapt – Not every child adapts to change well, and it can take some time for the child to accept the change. When creating a visitation schedule, limit the amount of travel until your child adjusts.
- Communication – The child must remain in communication with the distanced parent. Consider when and how the child will communicate with the out-of-state parent. These arrangements can also be used to communicate with the main parent while visiting the distanced parent.
Child custody when parents are in different states can be complicated. To learn more see our article: Child Custody for Parents in Different States
Child Custody Arrangements
The final child custody arrangement will either depend on the parent’s preferences, if they can agree and a judge approves, or a judge’s decision.
Child custody schedules can rely on these issues:
- The custody arrangement
- How far parents live from each other
- The child’s ability to adapt to change
- The child’s daily schedule
- Travel time
- Each parent’s schedule and commitments
- The child’s preferences
If one parent has primary physical custody of their child, the noncustodial parent may have visitation rights. When and for how long the noncustodial parent can see their child depends on the type of visitation they have. If the noncustodial parent has unsupervised visitation, their schedule could include any of these arrangements:
- One overnight visit a week
- Alternating weekends
- One weeknight plus every other weekend
- Alternating extended weekends
When parents have joint custody of their children, the child has the opportunity to spend an equal amount of time with both parents. A joint custody arrangement can look like any of the following situations:
- Alternating weeks
- Alternating weeks with a midweek overnight visit
- 2-2-3, meaning the child stays with Parent 1 for two days, then Parent 2 for two days, then back to Parent 1 for three days with an alternating schedule
- 3-3-4-4, meaning the child stays with Parent 1 for three days, then three days with Parent 2, then 4 days with Parent 1, and 4 days with Parent 2
- 2-2-5-5, similar to the previous schedule, the child stays with Parent 1 for two days, then Parent 2 for two days, then back to Parent 1 for five days, and Parent 2 for five days
Sometimes, parents have a custody arrangement and realize it is not suitable for either parent or child. If there is a valid reason and changing the schedule would be good for the child, a parent can request a modification from the court.
Child Custody Modification
While final child custody orders are permanent, parents may need to file for modification. It is up to the court to decide if modifying the order would be in the child’s best interest.
When a Parent Can File for Child Custody Modification
If a parent wishes to petition the court for a modification of their child custody agreement, they must have a valid reason. For a judge to consider the modification, the following should be true:
- There has been a substantial change in circumstances
- The modification would suit the best interests of the child
Without this, a family court judge will likely not grant a modification.
To consider seeking a custody modification, there must be a “substantial change” in circumstances. These changes often occur after certain events, including these:
- One parent physically relocates
- A parent’s situation has changed, finance or health-wise
- The child’s needs have changed
- One parent isn’t following the child custody order
- The child is in danger
When filing for child custody modification, the petitioner will cite their reasoning and the relief sought. The judge will consider the facts and evidence presented before making a final decision.
Child custody modification is never guaranteed. It is ultimately up to the judge, and whether the judge believes the change would be beneficial to the child.
Child Custody Enforcement
In an ideal situation, both parents follow the child custody order without issue. Unfortunately, that is not always the case, and problems frequently arise. If your child’s other parent is not following your child custody order, you can discuss it with them and see if this remedies the issue. If they continue to violate the order, you can seek help from the court.
First, try discussing the issue with your child’s other parent. Perhaps they are going through a difficult time or not intentionally violating the order. Speaking with them candidly may be enough to correct the problem.
If talking to your child’s other parent doesn’t solve the issue, you can petition the court for help. Both parents will need to appear before a judge to discuss the issue at hand. You, as the petitioning parent, will have the burden to prove the other parent has violated the order.
If you can confirm the other parent is in violation, the judge may decide to hold them in contempt. Contempt means punishment with fines and/or jail.
The process of child custody enforcement can be challenging, but necessary to ensure the other parent is following the child custody order as they should.
How to File for Child Custody
The process of filing for child custody will depend on your state’s laws and your circumstances. Parents most often pursue child custody during divorce proceedings, but custody issues can arise at any time.
If seeking child custody during a divorce, you will handle your custody matter simultaneously with your divorce. Otherwise, the steps for pursuing child custody are generally the same:
- Draft a petition – First, you will have to draft a petition informing the court of your intention to seek custody of your child, along with the relief sought, meaning the type of custody arrangement you seek.
- File your petition with the court – You must file your petition with the court and pay any associated filing fee. Filing your petition initiates your case.
- Serve the other parent – After you’ve filed your petition, you, the petitioner, must serve the other parent, the respondent, with copies of the documents you’ve filed. This serves as a notification, letting them know you’ve filed for custody.
- Wait for a response – The respondent is allotted some time, often about 30 days, to review the documents and file their response. This stage is commonly when the respondent seeks legal counsel.
What happens after you serve the other parent will depend on your state and their requirements.
If, after serving the respondent parent, they take no action, the court may enter into a default judgment in your favor. When you get a default judgment, a judge will typically grant the relief sought in your petition.
When the respondent files a response, they are responding to all allegations and relief requested in your petition. The respondent can make counter allegations and ask for relief themselves.
Some states require parents to schedule and attend at least one mediation session before they are allowed to appear before a judge. Other states have no mediation requirements, and you are provided with a court date.
Pursuing Custody without Court
If you wish to create a custody agreement, it is not necessary to go through the court. If both parents can agree, they can create their own arrangement and submit it to the court for approval.
Making a custody agreement on your own requires a thorough parenting plan. Your parenting plan should include clear details regarding custody, schedules, support, and anything you both feel is necessary and important.
Once you’ve completed your parenting plan, you can submit it to the court for a judge’s approval. The judge will review your parenting plan and, if they believe it is fair and favorable for the child, they will approve it.
Of course, you are always allowed to make custody arrangements on your own without a parenting plan or any legal help. However, if things ever go awry, your options are limited. Therefore, it is beneficial to have a custody agreement set in stone, whether both parents agree to create it together or a judge finalizes one for you.
Many child-related proceedings result in one parent having to pay the other child support. Child support payments are typically made by one parent for the financial support of their child.
Who Pays Child Support?
Contrary to popular belief, fathers are not the only parent required to pay child support—the court can order either parent to pay. Who pays child support will depend on the custody arrangement and both parents’ financial situations.
In a majority of child custody arrangements, one parent has primary physical custody, making them the custodial parent. Therefore, the noncustodial parent typically pays the custodial parent child support.
Even with joint custody, a judge may grant one parent child support. Whether or not one parent is entitled to child support will ultimately depend on the circumstances and finances.
Just because one parent is paying the other child support does not mean the parent receiving child support does not have to contribute as well. Both parents should always financially contribute in some way to their child’s upbringing.
One parent often asks the court for child support. However, there are no guarantees the judge will grant it. Child support is only awarded in cases where the judge feels it is fair or necessary.
How Is Child Support Calculated?
Every state uses its own method to calculate child support payments, and federal law also provides guidelines under the Child Support Enforcement Act.
While child support calculation varies by state, most states also consider the following factors:
- Each parents’ income
- The custodial parent’s needs and abilities to provide for their child
- The noncustodial parent’s ability to pay child support
- The financial needs of the child
- The child’s standard of living
Calculating child support requires both parents’ financial transparency, giving the court enough context to make the appropriate calculation.
When Do Child Support Payments End?
A parent is customarily required to pay child support until the child turns 18. Some situations may cause child support payments to end early or extend for a longer time, in these instances:
- The child has a disability
- The child passes away
- The child emancipates
- The child gets married
In some states, child support may continue past the age of 18 if the child is getting a college education.
Child support does not automatically end in most cases. The parent paying child support petitions the court to formally request the termination of child support.
Child Support Modification
Modification to child support can be agreed upon by both parents and approved by a judge. If parents do not agree but a parent still wishes to modify, they can petition the court for a child support modification.
The court discourages routine modifications to child support orders. Therefore, a judge will only consider modifying the agreement if the petitioning parent provides proof of a valid change in circumstances. These are some changes that may persuade the court to a change child support agreement:
- Increase in a parent’s income
- Change in a parent’s job or career
- The child’s needs change
- The increased cost of living expenses
- Modification in the custody arrangement
- A parent’s health deteriorates, or they become disabled
- A parent is incarcerated
- Other significant changes
If a parent wishes to modify their current child support arrangement, they can provide the court with evidence and information proving their case. If the court feels the modification would benefit the child, they will grant it.
Child Support Enforcement
When a judge determines one parent should pay child support, that parent must continue making payments. They may petition the court for a modification if needed, but they are not legally entitled to cut child support payments at will. The minute a parent stops making child support payments, they are considered in arrears, and some action should be taken.
If your child’s other parent has stopped paying child support or is not paying the required amount, you can start by bringing it to their attention. Discuss the issue and determine what can be done to fix it.
If the other parent is still unwilling to make child support payments, you may need to take legal action. Every state employs different procedures for child support enforcement, but the non-paying parent faces various consequences.
A parent that stops making child support payments faces any, or all, of the following consequences:
- Wage garnishment – With a wage deduction, child support payments can be automatically deducted from the paying parent’s paychecks.
- Withholding federal tax refunds – The state can take the paying parent’s tax refund and apply it toward missed child support payments.
- License suspension – The paying parent’s driver’s license or professional or occupational license(s) can be suspended or even revoked.
- Passport restrictions – The paying parent may be prevented from leaving the country.
- Contempt – The paying parent may be held in contempt of court. When an individual is held in contempt, this means they’ve violated a court order. Contempt can result in steep fines, jail time, or both.
A parenting plan is a document that either both parents develop together, or a judge helps create. Parenting plans address the most critical issues involving a child and their upbringing, commonly including these:
- Child custody and visitation
- Custody arrangements and schedules
- Holiday and vacation schedules
- Travel and relocation
- Extracurricular activities
- Child’s special needs
- Emergency childcare
- Schedule changes
- Parent communication and conflict resolution
When creating your parenting plan, consider some of the following details:
- Each parent’s involvement in the child’s life
- The child’s schedule
- The parents’ schedules
- How the parents plan to share responsibilities and decision-making
- The child’s wants and needs
- Each parent’s ability to provide for the child
The parenting plan should cover as many topics as possible to limit confusion and future conflict. When in doubt, parents can always resort to their parenting plan.
Child Custody Mediation
Mediation is a type of alternative dispute resolution (ADR). Many find mediation a better alternative to the traditional, adversarial approach to child custody.
The Mediation Process
Mediation involves both parents, along with their attorneys if they have legal representation, getting together with a mediator. A mediator is a neutral third party that works with both parents to calmly work through all child-related issues. Unlike a judge or an arbitrator, the mediator does not make final decisions. Instead, the mediator tries to create a compromise between the parties.
Prior to the mediation, the mediator will familiarize themselves with the case. During the mediation, the mediator will talk with both parents individually to better understand their wants, needs, and goals. Then, the mediation will attempt to help both parties resolve their issues in a friendly and cooperative manner.
If both parents can agree, the mediator documents the agreement to submit to the judge. If the judge finds the agreement fair and appropriate, they can integrate it into the final order.
Benefits of Mediation
Many prefer mediation over traditional methods for its various advantages. The following are some mediation benefits:
- Informal and collaborative setting – Parents that mediate feel less pressure than those that resolve their issues formally in front of a judge. Meditation also fosters a peaceful and collaborative setting, making it easier to communicate about issues and more likely for parents to reach a resolution.
- Cost-effectiveness – Mediation is usually much less expensive than litigation.
- Better communication – The presence and help of the mediator allow parents to communicate more effectively, allowing for a greater possibility of resolution.
- Greater control – When parents rely on a judge to decide, they are left with very little control over decisions. Mediation gives parents control over their situation and outcomes, as they are able to negotiate and compromise and have an equal say in all matters.
- Preservation of relationships – Solving child-related matters in the courtroom can dismantle relationships, often making them irreparable. Mediation makes decision-making more amicable, allowing parents to work with, and not against, each other.
- Confidentiality – Unlike other legal proceedings, mediations are not recorded or transcribed. Mediation is a confidential process, and mediators cannot disclose what was discussed during the session.
If parents who engage in mediation frequently feel more accomplished and satisfied, leading to higher rates of compliance in the future.
Child Custody Evaluations
Some cases may benefit from a child custody evaluation.
Child custody evaluations result from parents not agreeing on custody, even after going through mediation. Parents can request an evaluation, or a judge may deem the evaluation necessary.
These evaluations are helpful when one parent accuses the other of being an unfit parent. The evaluator can investigate these claims and determine their validity.
The Child Custody Evaluator
Child custody evaluators are often mental health professionals, including psychologists. The evaluator should have the knowledge and resources to make sound analyses and recommendations.
Parents can choose their own child custody evaluator if they can agree. Otherwise, the judge can assign a custody evaluator to your case.
The Evaluation Process
During a child custody evaluation, a child custody evaluator will work diligently to gather information on the parents, the child, and the family situation. They can then use this data to make recommendations on child custody and other pertinent child and parenting-related matters.
The evaluation process may vary, but can usually expect an evaluator to do the following:
- Talk to both parents individually
- Speak to and interact with the child away from parents
- Observe interactions between each parent and the child
- Interview individuals in the child’s life, including family members, teachers, or doctors
- Conduct psychological testing, if needed
- Review and analyze legal details
It is important to be patient throughout the process, as it may take several meetings and some time to complete.
The Evaluation Report
Once the evaluator has gathered sufficient information, they detail their recommendations in a comprehensive report. Recommendations frequently include these items:
- Child custody and visitation: The evaluator will determine the child custody and visitation arrangement best suited for the family.
- Parenting plan: The evaluator can help parents create a parenting plan, which includes details such as childcare, education, and guidance for dealing with conflict, should it arise.
- Therapy: The evaluator may recommend parents and/or the child attend therapy if they believe it is helpful.
- Parenting classes: Depending on the circumstances, the evaluator may feel parents could benefit from parenting classes in order to be better parents for their child.
- Future evaluations: If the child is particularly young, the evaluator may propose a re-evaluation in the future to assess how things are progressing and determine whether changes are needed.
While the report is not binding and the judge is not required to follow all recommendations, it is an important tool. Parents and judges can use the child custody evaluation report to guide them in their decision-making.
Child Custody—Frequently Asked Questions
When faced with child custody matters, questions may arise, depending on your circumstances. The answers to these questions may help guide you.
+ What makes a parent unfit?
Every state defines an unfit parent differently. An unfit parent is a parent who fails to provide their child with the proper care and support.
It is common for one parent to accuse the other parent of being unfit. However, accusations always warrant an investigation, as parents often throw around baseless accusations during heated divorces and child custody proceedings.
If a parent accuses another parent of being unfit, they must provide the court with proof to back their statement. The judge may also order a thorough child custody evaluation. The judge can use any evidence and testimony provided, along with the child custody evaluator’s findings and recommendations to decide on a parent’s fitness.
There are various reasons a parent may be unfit. Here are typical reasons:
- The parent suffers from a mental illness
- The parent has a history of alcohol or substance abuse
- The parent has a criminal past
- The parent has neglected the child
When a judge deems a parent unfit, they face several consequences:
- Inability to get child custody
- Denial or revocation of visitation rights
- Termination of parental rights
The court will always take action to protect a child from potential harm.
+ Can an unfit parent ever regain child custody?
A child’s safety is always most important. However, courts also recognize the importance of parent-child relationships and how cutting off these connections can be detrimental to children.
If a parent that was once deemed unfit wishes to regain custody of their children, they may face a long road. Depending on state law, parents will likely undergo an evaluation and investigation to determine whether they’ve sufficiently cleaned up their act. The parent can appear before the judge and present their case, providing evidence and testimony in their favor.
In these situations, it is best to have the help of a child custody attorney to move the process along quicker and more efficiently.
+ Do family judges favor mothers over fathers?
It is a long-standing myth that family court judges favor mothers. This is false. When it comes to child-related matters, neither parent is favored at the initiation of a case.
One of the reasons mothers being favored has become a popular myth is because family court judges determine who is the “primary caregiver” of the child. In many cases, this happens to be the mother. Mothers normally provide their children with the love, care, and guidance they require. This does not mean fathers do not provide these same things, but mothers often do it at a different level.
Eventually, depending on the situation, it may become clear through investigation, evidence, and testimony that one parent may be the primary parent. However, this could be the child’s mother OR father.
+ Can a mother seek child support without establishing paternity?
No. A judge will not grant child support if paternity is not first established.
If a woman is seeking child support, but there is a doubt as to the child’s paternity, either parent can request a paternity test, or the judge can order one. If the mother refuses to allow testing, they will not be allowed to proceed with their child support request.
+ How can fathers better their chances of getting 50/50 custody?
In many cases, fathers seek 50/50 custody of their children. This may be more challenging sometimes than others, depending on the situation.
If you are a father seeking 50/50 custody of your child, you should consider doing these things:
- Be present and involved in your child’s life – If you want to be present in your child’s life and provide them with the love and support they need, a judge will likely see the clear value you bring to your child’s life.
- Live close to your child – It is much easier to have your child half the time when you live close to the other parent. When parents live far away from each other or even in different states, it is nearly impossible to make 50/50 custody work.
- Be responsible with child support – If a judge orders you to pay child support, be sure to make payments in full every time. Paying child support shows the court you’re serious about supporting your child financially.
- Accommodate your life for your child – If you make certain accommodations for your child, such as getting a safer car or giving them their own space in your home, this shows the court you’re serious about your fatherly duties and making your child a priority.
- Document all visitations and expenses – Keep track of all visits and ways you support your child financially. It’s easy for your child’s other parent to make allegations against you, but this type of evidence can benefit you greatly.
+ Is child custody determined in the same manner for same-sex parents?
Laws regarding same-sex marriage and families are still developing. For that reason, child custody for same-sex parents can be challenging to navigate.
Child custody for same-sex couples depends on whether you are both the child’s legal parent or if only one is the legal parent.
These scenarios result in the couple both being the child’s legal parents:
- The child was born into the marriage
- One parent adopted the biological child of the other parent
- Both parents adopted the child together
If both parents are considered the child’s legal parents, child custody is typically handled in the same way it would be for straight couples.
If only one parent is the child’s legal parent, in most cases, the other parent will not have any legal rights to the child. It is still worth discussing your case with a family law attorney in your area. Because same-sex laws are constantly evolving, you may have some options.
+ What do I need to prove to get emergency child custody?
When petitioning the court, you’ll need to provide reasoning why you believe the child is in danger. At your hearing, the judge will need more context and may ask for concrete evidence. Evidence for emergency custody hearings can include the following things:
- Police reports
- Medical records
- Text messages and emails
- Reports from child protective services
- Photos and videos
- Witness statements
- Domestic violence reports
- Reports from psychologists
Evidence is critical for emergency custody, as it helps judges determine the validity of claims presented. If the judge feels the evidence is lacking, they may need more time to investigate.
+ If my child’s other parent is incarcerated, are they still required to pay child support?
Whether an incarcerated parent will have to continue paying child support from prison depends on your state. Some states allow incarcerated parents to stop paying child support because of their circumstances, while parents in other states will continue to have to make payments with a reduction.
In some situations, a judge may grant a halt in child support payments while the parent is incarcerated, with accumulating interest. Once the parent is released, they will have to pay to make up for the time they were gone.
If your child’s other parent pays child support but faces incarceration, discuss your situation with a child custody lawyer in your state to understand what that means for you and your child moving forward.
+ If my child’s other parent isn’t paying child support, can I withhold visitation?
No. Even if your child’s other parent is not following through with paying child support according to the final order, you cannot keep the child from them if they are entitled to visitation. If you withhold visitation, this can put you in an unfavorable position legally, as you are now in violation of a child custody order.
If the other parent is not paying child support, you can seek legal help to enforce the order. However, messing with visitation is never the way to go.
+ What happens to child support if the parent paying support passes away?
The death of a parent can have a lasting impact on a child. It can also affect the child’s life financially.
If a custodial parent counts on a noncustodial parent’s support and the noncustodial parent passes away, this can put the custodial parent under financial strain. However, in general, financial obligations do not end at a parent’s death. After a death, child support may come from other sources, such as these sources:
- Life insurance proceeds
- Provisions detailed in the deceased parent’s will
- Social security benefits
- The deceased parent’s assets
Navigating the death of a parent can be challenging. If doubts exist, discuss the situation with a qualified attorney.
+ Can child support continue past the age of 18 if the child is a dependent, full-time student?
Whether you may receive child support for a child over the age of majority depends on your state’s laws. Some states grant support for children past 18 if they are in school full time. For example, in Georgia, the court can order support for a child if they are unmarried or non-emancipated and enrolled in college, until the age of 20. In other states, like New Mexico, support ends at age 18, unless the child is still in high school, then age 19.
In many states, support can continue past the age of majority by agreement of the parties. So, for instance, parents may agree a child’s father will continue paying support until the child turns 21 or graduates with an undergraduate degree.
Discuss child support with your child’s other parent. If a judge decides on your child support, you can request extended support if your state’s laws allow it. Additionally, if you presently have a child support order, you may consider requesting modification at some point.
+ Does my child’s opinion influence the court’s decision?
It depends. A child’s age and maturity are critical when deciding whether their preferences will have any influence on the judge’s decision.
States vary on what age a child is considered “mature enough” to weigh in on child custody issues. In most states, no age is specified by law, and the judge can decide when they think the child is old enough to have a voice. Other states’ ages vary between 11 and 14.
Even if a child is able to express their wishes, a judge will never base their decision solely on the child’s opinion. Many other factors play a part.
+ What is a Guardian ad Litem?
A Guardian ad Litem, often referred to as a GAL, is an individual the judge appoints to act as an advocate for your child. The Guardian will investigate, which regularly includes the following steps:
- Talking to and spending time with the child
- Interviewing those most influential in the child’s life, such as family and teachers
- Speaking with the child’s doctors or therapists
After a thorough investigation, the Guardian will document their findings in a report. Their report usually includes recommendations regarding the child’s living situation and what they believe would be in the child’s best interests. The Guardian may also be called to testify on their investigation in front of the judge.
Guardians are respected and trusted individuals. The judge relies on them when making decisions regarding the child and their future.
+ Can my child choose which parent they want to live with?
No, legally, your child cannot make these decisions for themselves. If your child is of a certain age, their opinions may play a part in the judge’s decision, but the child cannot make the choice.
If both parents can agree and create a parenting plan together, they may decide to implement their child’s preferences. However, if a judge gets involved, they will not decide based solely on the child’s wishes.
+ Will my child need to appear in court?
Appearing in court in front of a judge can be scary and overwhelming. For this reason, even if a child is mature enough, they are not typically required to testify in court.
The child may have the opportunity to share their thoughts directly with a judge. When there is a custody evaluation, the custody evaluator can have a conversation with the child and include details in their evaluation report.
In some cases, a judge will assign a Guardian ad Litem to the case. The guardian will meet with the child on several occasions and have discussions with them. Eventually, the guardian will testify in court regarding the child and their wishes.
If the child is old enough and their opinions hold any weight, there are ways to document their thoughts without having them face the stress of appearing in court.
+ Can I expect my child to be involved in the custody process in any capacity?
There is usually very little participation, if any, for your child.
Many parents fear the effects divorce or child custody proceedings may have on their children. Fortunately, children normally have minimal involvement in the process, shielding them from the possible negative effects.
If your child is involved, it usually means they’ll meet and speak with a Guardian ad Litem, child custody evaluator, psychologist, or judge. These scenarios are not intimidating at all, and anyone with contact with your child will handle the situation with much care and patience, to not make your child feel nervous or agitated.
+ Is an agreement in child custody mediation binding on all parties?
The goal of custody mediation is to have parents tackle the pressing issues and compromise to reach a resolution. If parents agree, the mediator creates a document detailing the agreement. Both parties must sign this agreement, and it is treated as a binding agreement. The agreement is submitted to the judge for approval, and if approved, the agreement is part of the final order.
Therefore, an agreement signed by both parties after custody mediation is binding and enforceable.
+ Should I talk to my child prior to a child custody evaluation?
Yes, it may be helpful to talk to your child before a child custody evaluation to give them an idea of what’s to come.
When children reach a certain age, they may wonder what’s going on. If your child is old enough to understand, you can explain to them that a friendly individual will be talking to them, and they can be trusted. Giving your child reassurance can help them feel more comfortable and able to open up to the evaluator.
When discussing an upcoming evaluation with your child, avoid discussing these topics:
- Doing or saying anything that can make your child fearful of the process
- Instructing your child on what to say to the evaluator
- Instructing your child to speak ill of their other parent
Find a balance between explaining to your child what the evaluator is there to do and steering clear of frightening them.
+ What happens if my child doesn’t want to spend time with their other parent?
If your child is apprehensive about spending time with their other parent or simply refusing, it is crucial to understand why this is happening. Perhaps the child is scared of having a negative experience while with that parent. If this is the case, it’s important to find out so you can act. You may need to consider seeking legal help or a child custody modification.
If your child is uninterested in spending time with their other parent for a reason not related to their health or well-being, you must explain they are required to follow through with visitation.
Parents are technically considered to have control over their children, so if your child refuses to visit their other parent, you are not in compliance with the custody order, and this can put you in trouble legally.
+ If a parent remarries, does that affect child support?
The answer to this question depends on the circumstances and your state’s child support laws.
If a noncustodial parent remarries, this does not impact the amount of child support that parent must pay. The new spouse’s income and assets are not a factor unless the noncustodial parent’s disposable income increases as a result of the marriage. For example, if the noncustodial parent marries and moves into their new spouse’s home, this eliminates any mortgage or rental payments. Therefore, the parent would have more monthly disposable income, and this could raise child support.
If the noncustodial parent has children with a new spouse, the court may consider lowering their child support payments to accommodate the responsibility of additional children.
If a custodial parent remarries, it may not affect the amount of child custody they receive. However, if the custodial parent remarries someone with a significant income, the court may decide to lower the noncustodial parent’s child support payments.
Every situation is different. Ultimately, the circumstances surrounding the remarriage will dictate how child support is affected.
+ Can a parent move out of state with their child, or do they need permission first?
If you wish to move with your children but already have an existing child custody order in place, you will need permission before relocating. Depending on your state’s laws, either the relocating parent will have the burden to show a substantial reason for the move, or, if the other parent objects, they will need to prove the relocation is not in the child’s best interest.
If there is a legitimate reason, the court may allow the parent to relocate with their child. If they grant the move, the judge must reevaluate the child custody arrangement and make changes accordingly.
+ If I’m awarded custody, can I automatically expect to receive child support?
No, child support is not automatically awarded. The judge will need to review certain factors to determine which parent is entitled to receive support from the other parent. This will depend on the custody arrangement, each parent’s financial situation, and their ability to provide for their child, among other details. In a majority of cases, the custodial parent is entitled to child support from the noncustodial parent.
+ Does military service affect a parent’s ability to get child custody?
It is not uncommon for one or both parents to serve in the military. Military parents are still able to get custody of their children. Usually, while one parent is deployed, the child spends all their time with the other parent. If both parents are active and deployed, children will stay with previously agreed-upon guardians, such as grandparents.
Even if a parent is in the military, child custody proceedings are handled similarly to those involving two civilian parents. The main difference is parents or the judge will have to make provisions for the child should one or both parents be deployed for some time.
If a parent is deployed, they don’t have to worry about their child’s other parent doing anything to change child custody arrangements while they’re away. The Servicemembers Civil Relief Act (SCRA) provides military parents with protections, including automatic stays on any civil proceedings. While parents can still file for child-related matters with the court, the deployed parent will receive notification but will not have to worry about anything being decided while they are gone, unless the matter is urgent.
+ If one parent moves out of the family home before a divorce, will this affect that parent’s ability to get custody later on?
It may. If a parent leaves the marital home, leaving their child with the other parent indefinitely, this may tell the court the parent that moves out feels their child’s other parent is better suited to have primary custody. This may seem unfair, but it is common for judges and custody evaluators to scrutinize a parent’s every move when determining what is best for the child.
If a parent wishes to move out of the family home, it is best to have a written and signed agreement between both parents that this is a temporary arrangement, including the reasoning behind the parent leaving the home. When in doubt, always protect yourself for the sake of your case and your children.
+ Can the judge order parents to get counseling?
Yes. Depending on your circumstances, the judge may order one or both parents to get counseling.
The judge may order a psychological evaluation in the middle of a custody case if they are unsure whether a parent may be unfit. After a case has concluded, the judge may request either one or both parents get therapy for the sake of their child and relationship.
If a parent has lost parental rights and wishes to regain their rights, the court may require treatment before considering it.
+ Do stepparents ever have any legal rights to their stepchildren?
The relationship between stepparent and stepchild does not create any legal rights. In the eyes of the law, a child can only have two parents. Therefore, in most cases, if a stepparent wishes to adopt their stepchild, one of the stepchild’s legal parents must renounce their rights to the child so the stepparent can legally adopt the child. Only after legally adopting a child can a stepparent assume the legal rights for the child.
+ Can grandparents get any type of custody or visitation?
Grandparents’ rights to custody and visitation vary by state. Not all states allow grandparents to seek any type of custody. Grandparents never have automatic custody rights to their grandchildren. If a grandparent is allowed to request custody or visitation rights, they must first petition the court.
+ Can an individual get custody of a child they are not related to?
Generally, child custody cases involve biological or adoptive parents. Nonetheless, a court may sometimes grant a non-related individual custody of a child.
When a third party gets custody of a child, this is often the result of situations like the following:
- Both parents lose their parental rights
- One parent is raising the child alone and they lose their parental rights
- Both parents pass away
- Both parents are incarcerated
- Both parents relinquish their parental rights
Filing for custody of a child that is not yours is often similar to the normal process for biological parents. In these situations, it is usually best to seek the knowledgeable help of a child custody lawyer, as these cases can be convoluted.
Grandparents are only allowed to ask the court for custody rights under certain circumstances:
- The child’s parents pass away
- The parents are unfit
- The parents agree to have the grandparents take custody
- The parents are under investigation by child protective services
- The child has lived with the grandparents for an extended period of time
A court may deny custody, but grandparents can still seek visitation, even though visitation rights are not guaranteed.
As with all child-related matters, the court will determine whether grandparents getting custody would be in the best interest of the child.
+ What factors affect how long my child custody case will take?
There is no average time for the resolution of child custody matters. Proceedings often require some time from beginning to end, depending on certain factors. The details that have the greatest impact on the length of your custody case include these:
- Your location
- Whether or not both parents can agree
- Whether mediation is required
- Whether it goes to trial
- Whether or not you and the other party have a lawyer
- The judge’s requirements
- The complexity of your case
You may encounter many obstacles throughout the child custody process. It is critical to remain calm and patient during custody proceedings.
+ How should I prepare for my child custody case?
Facing an impending child custody case may make you feel anxious and unsure. You can ease some of your stresses by following some steps in preparation:
- Familiarize yourself with your state’s child custody laws
- Consider your ideal goals and outcomes
- Gather helpful and relevant evidence
- Find witnesses, in case they are needed
- Try to remain calm and patient
Lastly, discuss your case with a child custody lawyer. An attorney can address your most pressing questions and concerns, giving you valuable peace of mind. A custody lawyer can also provide excellent legal advice and determine the best steps to help get you the most favorable outcome for you and your child.
+ What happens with child support if the father retires?
While most fathers do not retire during the period they’re ordered to pay child support, some fathers reach retirement age before their obligations are fulfilled.
In general, parents are entitled to petition the court for child support modification if they’ve experienced a change in circumstances. Retiring may count as a change in circumstance if a father’s income changes.
When a father retires, they must reevaluate their finances. If they are unable to pay the child support the court ordered them to pay, they should petition the court as soon as possible to seek a modification.
+ Can I file for child custody without legal representation?
Legally, you may file for child custody and handle your case pro se, meaning you’re unrepresented. Still, in most cases, you should seek the help of a child custody lawyer. Handling a child custody case can be extremely difficult, especially in highly contested cases. When you do everything yourself, it can prolong your case and you may end up with an unfavorable result.
If you’re facing a child custody case, start by consulting with a custody lawyer.
+ What questions should I ask my child custody lawyer?
If you seek legal help from a child custody lawyer, you likely have many questions. These are some of the most important questions to ask your custody lawyer before initiating your case:
- Which custody laws pertain to my case?
- What evidence can I prepare to help me with my case?
- What can I expect to spend on my child custody case?
- What are my chances of getting custody?
- How likely am I to get/have to pay for child custody?
- What is your legal opinion of my case?
- How long will it take to resolve my custody case?
- What next steps should I take?
Count on a child custody lawyer to provide answers to your most pressing questions. Going into the custody process with a reasonable amount of knowledge can help ease some of your stresses.
+ How can a custody lawyer help me?
You are not legally required to have counsel represent you during child-related proceedings. However, in most cases, the help of a qualified child custody attorney can help yield more favorable results.
A custody lawyer can help you with the most important tasks associated with your case, including these:
- Drafting required paperwork
- Filing paperwork with the court
- Conducting investigations
- Addressing your concerns
- Establishing paternity
- Gathering evidence and witness testimony
- Building a strong case
- Helping enforce child custody or support
- Seeking modification for child custody or support
- Preparing you for mediation or court
- Representing you during mediation
- Representing you in court
If you’ve never handled a child-related matter, you may not even know where to begin. A lawyer can help you every step of the way, ensuring things are taken care of timely and appropriately on your path to resolution.
+ How much does a custody lawyer charge?
While custody lawyers offer invaluable help, they can also be quite pricey to hire.
What you can expect to spend on your lawyer will depend on where you live, the complexity of your issues, and how long it takes to conclude your case. Custody lawyers begin by charging a retainer fee that starts around $3,000 and can go up to $10,000. The attorney will work against the retainer fee, and once they’ve used it up, they start charging hourly for their work. Hourly fees for a custody lawyer begin around $250 and go up to $700.
Child custody issues require extensive time, energy, and can entail plenty of money.
+ How can an unbundled lawyer help me with my child custody issues?
If you’d like to get the legal help only a lawyer can provide but want to cut costs, an unbundled lawyer may be the answer.
An unbundled lawyer is like any traditional lawyer, but the way they structure their services is different.
When you hire a traditional custody lawyer, you’re paying them the big bucks to handle your entire case from start to finish. With an unbundled lawyer, you’ll only need to pay for the services you really need. Therefore, if you are willing and able to handle part of your case, you can count on help from an unbundled lawyer when you need them most.
+ How much does an unbundled lawyer cost?
Unlike regular custody lawyers, unbundled legal services are much more cost-effective. What you’ll pay will depend on the services you require help with. Legal services from an unbundled lawyer start at $500-$1,500.
+ Can an unbundled lawyer help me if I need more extensive help with my child custody case?
Yes. Whether you need minimal help with a few tasks or need more substantial representation, an unbundled lawyer can help.
You may feel ready to handle your case only to realize you need more help than you initially thought. Unbundled legal services are “pay as you go,” so you won’t have to pick the extent of your services at the start. Whenever you feel you need your lawyer, they’ll be ready to assist.
Contact Unbundled Legal Help Today
Unbundled Legal Help believes everyone should have access to quality legal help when they need it most. We’ve worked diligently to build an impressive network of unbundled lawyers ready to help you handle your child custody case.
No matter the level of support you require, we can match you today with a skilled unbundled custody lawyer in your area.
When you’re ready, contact us to get started.