Processes for Determining Child Custody in Divorce Cases
Determining the custody of children involved in a divorce case is one of the most stressful situations a family can go through, even in the most mutually beneficial and cooperative of separations. Knowing what to expect (and having a good lawyer) can help to make the process go as smoothly as possible.
Before any trial before a court, your family will schedule a conference where an out-of-court settlement will be attempted. Judges and mediators often prefer to settle child custody cases out of court, since it helps to expedite the process and saves the child(ren) the stress of going to court.
Should the case go to trial, a court will determine how the child(ren)’s custody is divided or established. The decision is based on a number of factors, but will ultimately end up prioritizing what is best for the child(ren). Each factor is weighted differently in each case, but the main aspects of the situation the court will look at will be:
The Primary Care Giver
To limit the disruption to everyday life, the court will often look at which parent is already in charge of most of the caregiving responsibilities, including feeding, scheduling doctors’ appointments, bathes them, and attends to their school responsibilities.
The court will look at the physical and mental health of both parties when determining custody.
Taking care of a child is a financially and resourcefully draining responsibility. This is why the court will look at the resources available to both parties.
Some cases include parents that have previously abandoned their family. The court will look at which party left and how the remaining party handled the responsibility of looking after the child(ren) on their own.
The preference of the child is often very influential in the decision of the court, but the option isn’t available to all children. The court normally begins asking for the child’s opinion once they are over the age of 12, but children as young as five have been heard. Once a child turns 16 they are allowed to independently contest the custody decision.
Types of Custody Arrangements
Custody can be given in a variety of forms. This is because there is no “one size fits all” solution to how to manage a complex household. Some common custody arrangements are:
Joint custody describes situations in which the child(ren) live with both parents, often on a rotating basis. It also describes when both parents share legal custody, meaning they both make decisions regarding the child(ren)’s financial, educational, health-related, and legal future.
Since joint custody agreements involve lots of legal and logistical factors, courts make sure that they are well planned out or strike them down.
Physical custody refers to the parent that takes care of the child(ren)’s everyday needs. The child(ren) will live with the parent(s) with physical custody.
Legal custody describes which parent(s) have the right to take part in decisions regarding the child(ren)’s future. The child(ren) do not necessarily live with the parent with legal custody.
Pendente Lite of Temporary Custody
Temporary custody is implemented prior to a final custody agreement. It is often relevant when a couple has separated but are still determining custody.
A parent is granted sole custody when they have full legal and/or physical custody of the child(ren).
It is rare for a court to determine split custody to be the optimal option for the children involved. Split custody occurs when a couple with multiple children split custody so that one parent gets some children and the other gets the rest of the children. This is often disruptive for the children and is usually only considered if the children request it.
Preferences Based on Gender
Maryland courts do not determine custody based on the gender of the parent if both are registered as parents. That being said, if the couple is unmarried and the father wants to claim rights to the child(ren) he must establish his paternity through a declaration to a court or marrying the woman.
Modifying the Agreement
If a parent wishes to modify the custody agreement they must show proof as to why it isn’t working. The court will generally do its best not to change agreements unless absolutely necessary. That being said, the court values the wellbeing of the child(ren) above all else and will change the agreement if there is a clear flaw that is disruptive to the child(ren).
If you are looking for a good family lawyer to help you in your child custody case, call Hershon Legal. Here we strive to help you get what’s best for you and your family.