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Family Law Newsletter- Child Custody

Jan. 9, 2020

When a couple divorces or separates, custody of the child (or children) must be determined. The couple may make a custody agreement themselves, either by mutual consent or through mediation. If the couple cannot agree to custody, the court must make the choice for them. When a court is determining who should get custody of a child, they consider the child's best interests. In the past, the mother was presumed to be the best parent to raise a child. This presumption is no longer used. However, even though it is not a legal standard for a court to believe the mother is the best parent for child-rearing, some jurisdictions still follow this archaic notion. It is important to know the common practice in your jurisdiction when the court is establishing child custody.

When determining the best interests of the child, the court looks at a variety of criteria, including:

  • Which parent has been the child's primary caregiver?

  • What is the health of both parents (mental and physical)?

  • What is the financial situation of each parent?

  • What are the wishes of the child and the parents?

  • Where does each parent live? Would the child have to move?

  • What is the child's relationship to his or her parents? Siblings? Extended family?

Types of Custody

There are several options for child custody. Custody may go to one parent, or it may be shared between parents. If one parent has custody over the child this is sole or primary custody. If the parents each have custody of the child, this is called joint, shared or split custody. Joint custody may be legal, physical or both. Legal custody is decision making power over major aspects of the child's life. Some examples may be school, religion, medical care, extra-curricular activities and others. If parents have joint legal custody, they both have decision making authority and must agree about the decisions they have made. This may be an issue for parents who have a difficult time cooperating with each other and the court will weigh this issue when making their determination. Parents may also share physical custody of their child. This may be split equally, or the child may spend more time with one parent and less with the other. The statutory requirement regarding joint legal and physical custody varies depending on jurisdiction.

Same-Sex Couples and Child Custody

The court considers the best interests of the child when determining custody. The sexual orientation of a parent (or parents) does not make him or her unfit in the eyes of the law. The court looks at the same criteria for heterosexual parents as for homosexual/lesbian/bisexual/transgender parents. The only situation where the sexual orientation may be considered by the court as a factor in determining child custody is if there is evidence that the parent's same-sex relationship has harmed the child. Without a showing of harm, the court may not consider sexual orientation as a factor when determining the child's best interests.

Child Abuse

Child abuse can take many forms. Neglect occurs when the responsible parties fail to provide the child with basic necessities or fail to protect them from imminent and serious harm. Physical abuse is any physical or mental injury that is inflicted or threatened to be inflicted on the child by a responsible party. Sexual abuse occurs when any person in a position of authority over the child subjects the child to sexual contact. Even prenatal exposure to controlled substances, other than for medical reasons, can constitute child abuse. As with elder abuse, certain persons, who by virtue of their professions come into contact with children they suspect may have been abused, have a duty to report their suspicions. Many states have centralized reporting stations, available through toll-free telephone numbers, to which suspicions of abuse may be reported.

Domestic violence and neglect, whether perpetrated on a child, a spouse or partner or an elderly or other vulnerable adult, is a grave problem with serious, long-term consequences. A lawyer experienced in dealing with abuse issues can help a victim get the protection to which he or she is entitled.

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