The end of a marriage or other long-term relationship is always hard and complex for a whole range of reasons, especially for children. It becomes even more difficult when the parents can’t agree on what to do with the children or how to share them. Custody law is the area of family law that deals directly with this issue: Whom will the child live with, and who has the right to make future decisions about the child’s life? Custody law is used mostly in situations involving divorce, but it’s also relevant in any situation concerning parents’ rights to raise their child and legal challenges to those rights, whether those challenges be from other family members or Child Protective Services.
Types of Custody
In defining and delineating parents’ rights to custody after a divorce, there are several different types of custody a parent can be given. One important distinction courts make is between sole and joint custody agreements. If one parent has sole or primary custody over a child, the other parent gives up or loses most of their rights to control over the child’s life. Depending on the agreement, however, the secondary parent may retain the right to see the child for regular visits.
In joint custody, the two parents agree, whether willingly or not, to share custody of the child. This is easier when the two partners in the relationship are still friendly and communicative after the divorce, as joint custody requires continual contact between the two parents for arranging schedules and transportation and making important decisions about the child’s life. Although specific conditions vary, joint custody is the most common arrangement, as courts and families generally prefer to keep both parents in the child’s life.
When deciding custody agreements, judges and parents can also make a distinction between physical and legal custody. Physical custody refers to actual physical care for the child. If a child really only lives regularly with one parent, that parent has sole physical custody. The other parent may still have the right to visitation, but that parent can’t take the child to live with them for longer periods of time without a change in the custody agreement.
Meanwhile, legal custody refers to the ability and right to make decisions for the child. While one parent may have sole physical custody and be the primary physical provider for the child, the parents may still share joint legal custody. In that case the providing parent still has to communicate with the other parent for making important decisions about raising the child. Important decisions include anything involving moving, medical treatment, religion and education.
How Custody is Decided
“Most custody issues are resolved without ever going to court,” says Sherry Cross, family law attorney. “Either the parents come to an agreement on their own or they bring in someone to help them negotiate.” Lawyers are sometimes called upon for help with negotiations, but are usually only needed if a case goes to court. These cases end up in court when parents simply can’t agree on how to share custody. They can also go to court later on if one parent wants to alter the agreement or if they believe the other parent is not honoring the agreement as it stands. Trials can be very difficult and stressful for the parents and the child, so they are generally avoided if there is any other available route to a compromise.
When a custody battle goes to court, it becomes the judge’s role to listen to both sides and make a final decision based on the best interests of the child. The default resolution when possible in many courts is to give joint custody to both parents, so the goal for parents in a custody trial is usually either to show that it would be unsafe or unhealthy for the child to be in the other parent’s care or to defend oneself from those same accusations.
Involving children themselves in the work of a custody trial isn’t healthy for the child and is frowned upon except in extreme circumstances. One of the most important things a parent can do in a custody trial is to respect the orders and processes of the court and stay calm. Meanwhile a criminal record is one of the strongest pieces of evidence a court can use to take custody away from someone, especially if the criminal record corroborates specific accusations by the other parent. However, many different factors can come into play in a custody battle, and parents may find every part of their lives under scrutiny.