Determining Custody and Visitation FAQ
What courts consider when deciding who gets the kids.
What's Below:
What factors do courts take into account when deciding who gets custody of the children?
Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?
Is race ever an issue in custody or visitation decisions?
Are courts more likely to award custody to mothers than to fathers?
What factors do courts take into account when deciding who gets custody of the children?
Almost all courts use a standard that gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends on many factors, including:
- the child's age, sex, and mental and physical health
- the parent's mental and physical health
- the parent's lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
- the emotional bond between parent and child, as well as the parent's ability to give the child guidance
- the parent's ability to provide the child with food, shelter, clothing, and medical care
- the child's established living pattern (school, home, community, religious institution)
- the quality of the child's education in the current situation
- the impact on the child of changing the status quo
- the child's preference, if the child is above a certain age (usually about 12), and
- the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships.
When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?
The parent with physical custody is generally in the driver's seat regarding what is reasonable. This need not be bad if the parents cooperate to see that the kids spend a significant amount of time with each parent.
Unfortunately, it all too often translates into very little visitation time with the noncustodial parent, and bitter disputes over missed visits and inconvenience. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement) that sets the visitation schedule and outlines who has responsibility for decisions affecting the children. If you and your former partner have a hard time agreeing on what defines "reasonable," you can go back to court and have the visitation schedule modified to a fixed one with set times, dates and even pick-up and drop-off locations if necessary.
If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?
In a word, yes. Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody at a later time it's unwise to leave the children behind. The parent who leaves doesn't break any laws by leaving the kids with the other parent, unless that parent harms the children and the parent who left had reason to know or should have known that would happen.
But the parent who leaves does send a message to the court that the other parent is a suitable choice for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children's regular routines.
If a parent must leave the familial home (and wants to be the primary physical custodian), he or she should take the children and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without his or her knowledge. Family law judges frown on a parent who removes the children from the home without seeking the court's recognition. A judge may order that the children be returned to the family home, pending future proceedings to determine physical custody.
Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?
In a few states, including Alaska, California, New Jersey, New Mexico, Pennsylvania, and the District of Columbia, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child.
As a practical matter, however, lesbian and gay parents -- even in those states -- may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.
If you are involved in a custody case and are concerned about bias against you because you are gay or lesbian, make sure you consult a lawyer about protecting your rights. You can get attorney referrals from the National Center for Lesbian Rights (www.nclrights.org).
Is race ever an issue in custody or visitation decisions?
The U.S. Supreme Court has ruled that it is unconstitutional for a court to consider race when a noncustodial parent petitions for a change of custody. In Palmore v. Sidoti, 466 U.S. 429 (1984), a white couple divorced, and the mother was awarded custody of their son. She remarried an African-American man and moved to a predominantly African-American neighborhood. The father filed a request for modification of custody based on the changed circumstances. A Florida court granted the modification, but the U.S. Supreme Court reversed, ruling that societal stigma, especially related to race, cannot be the basis for a custody decision.
Are courts more likely to award custody to mothers than to fathers?
In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has been rejected entirely, or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests, without regard to the parent's gender.
As it turns out, many divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because the parents agree that the mother has more time, a greater inclination, or a better understanding of the children's daily needs. But it can also be because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody.
If you are a father and want to ask the court for physical custody, do not let gender stereotypes stop you. If both you and the mother work full-time, and the kids have after-school care, you may be on equal footing. In fact, if you have more flexible hours than the mother, you could have a leg up. In any event, the judge will look at what's best for the children. So if you think that you should have primary custody and that you can persuade the judge that it's in the kids' best interests, you should go ahead and ask for custody. If you present yourself as willing and able to parent, it will go a long way towards challenging any lingering prejudice against you as a father.