Going through a separation or divorce can be a trying time when emotions run high and it is easy to feel confused in regards to all the laws that apply. Here are five important details regarding child custody laws to help you better understand this function of the legal system.
Considerations for Custody
The court will take several things into consideration if the parents cannot amicably come to a private custody agreement. When seeking a court-ordered custody agreement, you should think honestly about yourself and your role in the following considerations:
- History of domestic violence
- Evidence of illegal drug or alcohol abuse
- Conviction of substance abuse or illegal activity within the past five years
- Relationship and amount of contact with the child/children
- Age and physical and mental health of child/children involved
- Willingness of one parent to encourage visitation with the other
While these factors greatly influence custody outcomes, don’t jump to conclusions. The court will take into consideration underlying factors, like the completion of treatment programs and time passed since convictions. You may seek the guidance of a lawyer to help with your custody proceedings. Divorce mediation services can be helpful in better understanding custody laws and cost less than a private lawyer. David Magnuson’s book Divorce for Grownups is a great resource for understanding mediation. You can also read about California custody laws at http://www.courts.ca.gov/selfhelp-custody.htm. For Florida residents, take a look at http://www.formydivorce.com/child-custody-law/ to get a good idea of what to expect regarding time sharing (custody) and divorce.
If the court determines the child will be endangered by granting custody to either parent, then they’ll determine a suitable third-party, or non-parent, custodian. This decision is not very common and only happens if it serves the child’s best interests.
Drug Testing and Custody Decisions
Either parent may be required to take a drug test prior to the court’s custody decision. Third party custodians are subject to possible drug testing as well. A positive result will not preclude a parent from obtaining custody or visitation, but will be taken into consideration with other information when determining the character of the parent or third-party.
Domestic Violence and Custody Decisions
A history of domestic violence can weigh heavily against the person seeking custody. The judge will, however, take into consideration whether the accused person has:
- Completed a batterer’s treatment program
- Recently committed acts of domestic violence
- Been served with an order of protection
- Completed a parenting course
If the accused person is not deemed a threat to the child/children, a custody plan may include supervised visitation, safe places to drop-off and pick up the child/children and ways for the parents to avoid seeing each other.
Types of Custody
Legally, there are two types of custody: legal custody and physical custody. Legal custody determines which parent will be responsible for making decisions regarding the child/children’s health, education and general welfare. Legal custody can be granted as joint, meaning both parents share in decision making, or sole, where one parent is responsible for all decisions. Physical custody determines the parent with which the child/children will live. Joint physical custody means the children live with each parent some of the time, though it does not require a 50/50 split of that time. Sole physical custody means the child/children will live with one parent, usually with visitation of the other parent.
Keep in mind that when the court determines any ruling pertaining to children, they are working to serve the best interests of the child/children. Going through a divorce or separation can be hard on children and it is important to do your best to put negative feelings for the other parent aside. The safety and well-being of children involved in custody proceedings should be the first and foremost consideration.
About the author: A recent college graduate from University of San Francisco, Anica loves dogs, the ocean, and anything outdoor-related. She was raised in a big family, so she’s used to putting things to a vote. Also, cartwheels are her specialty. You can connect with Anica here.
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