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Child custody is a legal term used when a couple - married or in a civil union - have children together. Under the law, the parents have joint guardianship and equal parental rights.
These rights can change, however, when the parents separate or divorce. If the parents cannot or will not work out an equitable custody arrangement, then the court will address custody issues.
A parent has the presumed right to visitation with their child, in the absence of certain circumstances, such as proof of physical or emotional abuse by that parent or of mental instability, which would cause a court to either order supervised visitation or none at all.
The Best Interests of the Child
When parents separate, the child or children will typically live primarily with one parent. To determine which home the child lives in the majority of the time, the court will decide which location serves the best interests of the child. In other words, the court looks to provide the best way to ensure stability in the child’s life. There are a number of factors that go into this decision:
Types of Custody
Whichever parent is granted primary custody, i.e., the custodial parent, will make decisions regarding the child’s school and health care. His or her religious upbringing, if an issue, may also be left to the custodial parent. There are different types of custody which can affect the decisions pertaining to the child.
One parent is granted temporary custody while the divorce or separation proceeding continues and until a final order is granted. The non-custodial parent may have supervision rights, or he or she may have supervised visitation in which another adult must be present during the visitation. Restricted visitation in any arrangement can be ordered if a parent has possibly abused the child or if the parent suffers from emotional problems -- the court can also deny any visitation under these circumstances.
Custody to Third Party
In some cases, a third party such as grandparents or a relative may seek custody if it is in the child’s best interests and if both parents have certain mental or legal difficulties that might pose a risk to the child.
If more than one child is involved, the court could separate the siblings and award split custody, per each child’s best interests. Generally, though, siblings are not separated.
Joint Managing or Joint Physical Custody
Depending on your state, the court may decide that a child will live with one parent for the purpose of attending school, in which case the court will impose a visitation schedule for the other parent, who will also have to pay child support. In some states, there is a presumption that the noncustodial parent will have visitation rights on a statutorily prescribed schedule, such as three weekends a month or every-other Thursday evening. Alternate possession, or who has custody for holidays and summers on alternating years, is also prescribed.
This can also be called “joint physical custody,” even though one parent has more parenting time than the other. The parent who has less parenting time may have to pay support, depending on the parties’ circumstances, including the amount of parenting time of each, the parties’ income, the child’s expenses or other needs, and whether the parents have other children.
Joint Legal Custody
Joint legal custody does not mean that the parents have joint physical custody; it only means that both parents share the right to make decisions affecting the child’s education, health, and welfare. These decisions cannot affect the physical custody arrangements.
Sole Physical Custody
In this situation, the noncustodial parent has only limited parenting time and may be subject to supervised time or a certain visitation schedule. The child will spend the majority of his or her time with the custodial parent.
Generally, the noncustodial parent must pay child support to the custodial parent if he or she is employed or has the current ability to earn income. The courts of each state determine child support payments based upon statutory formulas. Some courts, though, will impose whatever amount the court deems appropriate, given the noncustodial parent’s income and number of children, the combined income of the parents, and any additional needs, such as for special needs children or recreational activities.
Most child support orders obligate a parent to pay support until the child reaches the age of 18 or 21, but some may extend to a later date, such as until the child graduates from college or turns 25.
A court can reduce or increase the amount of support ordered if there is a substantial change in circumstances, such as the loss of a job, increased medical expenses or income, or if it is in the child’s best interests.
At any time during or after the divorce case, a parent may request that a child support order be modified. Modification is granted in order to meet changes in the needs of the children. For example, if a child develops special medical needs, the court may modify child support to require that a parent pay to meet those needs. It is also possible for the court to modify a child support order when there are changes in a parent's ability to pay the original support order. For example, if a parent loses his or her job, the court may decrease the child support payment to reflect the loss in income. In the alternative, the court may increase child support payments if a parent gets a raise or wins the lottery.
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