Child Custody | Family
What is Child Custody?
by Philip Ahn, Attorney
Many parents on the verge of seeking custody are not exactly sure what child custody is and what it covers. This is mainly because there are different types of child custody, the term itself refers to multiple aspects of the parent-child relationship, and every child custody case is unique.
In general, child custody refers to the physical and legal relationship between parents and children. Parents awarded custody incur partial or full rights to physical and legal custody.
Child custody rulings are determined by a judge. Their main priority when ruling on child custody cases is to ensure that the outcome is in the best interest of the child. Learn more about child custody below.
How Does a Judge Decide Who Gets Custody?
Regardless of the circumstances, a judge makes custodial decisions based on the best interests of the child. Judges are compelled by law to focus on the needs of the child, not the parents. Custody is typically granted to the parent who can best meet the needs of the child.
Factors that a family court judge will likely consider when determining the best interest of the child include the child’s relationship with each parent, the child’s wishes, finances, mental and physical health, and stability. Learn more below about each.
Parent’s Relationship With the Child
The court closely examines each parent’s relationship with their child. Parents that have developed stronger bonds with their children are more likely to get custody than parents that have been absent or not as involved in the child’s life.
Judges often rely on the opinions and observations of eyewitnesses, social workers, and other professionals that take into account each parent’s relationship with their child.
The Child’s Wishes
A child’s preference for the parent they want to live with is weighted accordingly, but it is not a singularly determining factor in child custody decisions. The opinions of children over the age of 14 tend to have more of an effect on how a judge will rule in child custody cases.
Children are not given the final say in custodial rulings because they are often not mature enough to know what is in their best interest. For instance, a child may prefer to live with a parent who does not require them to do homework or have a curfew, but such a choice may not be in their best interest.
Financial Resources of Each Parent
A parent’s ability to financially provide for their child will play a major role in a judge’s decision-making process. It is in the best interest of every child to be provided for, financially, if possible. Furthermore, a judge will also take into account the number of hours that a parent spends at work, professional travel frequency, etc.
Mental and Physical Issues
A parent with serious mental and/or physical health issues may be at a disadvantage in child custody hearings. This is especially true if there are past instances of problems that have affected their child. In addition, the mental and physical health status of a child is taken into account when ruling on child custody cases.
Judges will make decisions based on which parent can take care of all of their child’s needs while the child is in their custody. If a parent’s mental or physical fitness is called into question during a hearing, it can be difficult to overcome without the help of a child custody lawyer.
Stability and Safety
Most judges know that children need stability to flourish. They tend to rule in favor of relationships that are stable and in the child’s best interest. Parents that move often, do not have a steady income source, or are not currently a part of their child’s daily routine, can potentially disrupt a child’s life. This can be especially damaging if the parents are already going through a divorce or separation
Additionally, family court judges will scrutinize the overall safety of the environment that each parent offers. Parents that live in more dangerous neighborhoods, have substance abuse issues, past abuse allegations, friends involved in illicit activities, and/or have a criminal record must present compelling evidence to prove their environment is still safe for their kids.
The Best Interest of the Child
Every child custody decision is based on the best interest of the child. In addition to the factors listed above, judges consider others including education, extra-curricular activities, friends, support system, etc. when making final child custody rulings.
Though you may always have your child’s best interest at heart, in the case of child custody, a judge has the final say. Hiring a child custody lawyer can help you present a compelling case during your child custody hearing and increase the odds of an outcome that is in your child’s best interest and is fair to you.
Different Types of Custody
Most people tend to think about “child custody” as another way of saying physical custody. However, there are multiple categories of custody to include physical, legal, sole, joint, split, and non-parental. Child custody case requirements and procedures will vary based on the type of custody that you are seeking. Learn more about each below.
Physical Custody
A parent that lives with the child has physical custody. In some cases, physical custody may be shared, in other cases, one parent may have custody alone. The parent who the child primarily lives with (custodial parent) is more likely to get sole custody while non-custodial parents are more likely to get visitation rights.
Legal Custody
Legal custody incorporates a parent’s right and duty to make decisions concerning their child’s upbringing. Parents endowed with legal custody have the right to make decisions about education, medical needs, religious concerns, and many other rights. Parents that share legal custody must come to a resolution about disputed decisions or have the matter settled by a judge.
Sole Custody
Most states prefer that parents share custody. However, this is not always possible. Courts are more likely to award sole custody to one of the parents if the other is not able to adequately provide for all of the child’s needs. This is especially true if one of the parents has a documented history of violence, substance abuse problems, or claims of neglect.
Most child custody lawyers will advise parents to seek sole custody if the other parent poses a threat to the mental or physical health of the child. The court will decide whether or not visitation rights are an option for parents that have not been granted custody, on a case-by-case basis.
Joint Custody
Joint custody is another way of saying shared custody. Parents that are awarded joint custody must negotiate a schedule that works for their children as well as themselves. If they are unable to agree, a family court may impose an arrangement. Potential arrangements include:
- Alternating weeks, months, or years at each parent’s home
- Weekends and holidays with one parent, weekdays with another parent
- The children stay in one home and the parent’s take turns moving in and out
Split Custody
Split custody is when multiple children are split up during the custody process. For instance, if the parents have two children, one parent has custody of one child, and the second parent has custody of the other child.
This type of custody can be hard on children and is not a scenario that judges prefer. However, split custody may be awarded if it is believed to be in the best interest of each child involved.
Can Child Custody Decisions Be Reversed?
In general, child custody decisions cannot be “reversed.” However, they can be appealed and modified. Appealing a child custody ruling can only be accomplished because of legal errors committed by the original family court. If you simply disagree with a decision or wish to see it changed, you are more likely to benefit from requesting a modification of child custody.
Most judges prefer families to wait at least 2-3 years before modifications are made to the original child custody agreement. There are exceptions to this rule for example, such as the child being in imminent danger.
Do I Need To Go To Court To Obtain Custody of My Child?
You have the right to work out a child custody agreement with your ex outside of the courts. However, any agreements not approved by a judge are not legally recognized or enforceable. Skipping court can introduce confusion, disagreements, and the potential of being taken advantage of.
Going to court without legal representation is possible, but not recommended. Hiring a proven child custody lawyer can help to decrease the amount of time that you have in court, negotiate a fair agreement with your ex, and increase the possibility of a judge ruling in your favor.
I Can’t Afford a Child Custody Lawyer – What Should I Do?
Many working-class families find it difficult to pay legal fees for child custody lawyers. Instead, they often opt to take their chances by going to court alone, which leaves them vulnerable to unfavorable rulings.
Most child custody lawyers charge $3k – $5k just to start on your case and charge an additional $300 – $500 per hour on top of that. Fortunately, there are ways that you can save money on legal fees while still hiring a top-notch lawyer. Some of the more effective strategies for saving money include:
- Develop and maintain an amicable relationship with your ex
- Negotiate a child custody agreement with your ex before your child custody hearing
- Hire an unbundled attorney to handle the complex matters while you take care of the rest
How Unbundled Legal Help Can Save You Money
This may come as a surprise to some, but the cost of legal representation can be affordable. Parents that feel comfortable taking care of some aspects of their case, but would prefer to hire a child custody lawyer to take care of the rest, are good candidates for unbundled legal services.
Fees for an unbundled attorney start as low as $500 – $1500. If your case is more complex our network of proven small law firms and independent attorneys also offers affordable rates for full representation. Before you pay thousands of dollars in upfront fees for a traditional lawyer, contact us for a free consultation with an unbundled attorney today.