In the case of divorce in divorce proceedings, the court responsible for divorce proceedings also decides on the child custody arrangements. According to the standard statutory clause, if spouses have children while being married, they are joint guardians of the child, and their parental rights are the same. Each parent has the equal right to custody of their child, even if they divorce.
In determining where the children will live, the judge tries to arrive at a decision “the greatest interest of the child.” A decision that is in “the most beneficial interests for the child” involves considering
the desires of the parents of the child,
wishes of the child
and how the child’s relationship is with the parent and siblings.
others who could substantially affect the child’s best needs,
the child’s peace in his school, home and the community
as well as the physical and mental well-being of the individuals involved.
What is child custody?
Child custody refers to parents’ rights and duties to perform before and during separation.
How Courts make Custody Decisions
Most courts employ an approach that emphasizes the child’s ” best interests” of the utmost importance when deciding custody matters. What judges consider that is in the most beneficial interest of the child is determined by various factors, including:
- the child’s age, gender as well as physical and mental health
- physical and mental health
- the lifestyle of each parent as well as other factors in social life
- the emotional bond that exists between each parent and the child, and the ability of each parent to provide the child direction
- every parent’s capacity to provide their child with shelter, food, clothes, and medical attention
- the established pattern of living for the child (school home, family and religious institutions)
- the quality of a child’s education in the present environment
- the effects on the child of altering the status quo and
- The preferences of the child when the child is old enough to have an opinion.
Suppose all of these factors do not favor one parent over another. In that case, most courts tend to be focused on which parent is most likely to provide the child with the stability needed to ensure that the child’s relationship is maintained with the parent who is not. If the child is young, this could mean that the court will award parental custody to the one who is the primary caregiver for the child. If the child is older, the court’s best interest evaluation could favor the position of one parent that can ensure continuity in their area of education, neighborhood life, religious activities, and peer relationships.
In custody disputes that are extremely difficult to resolve, such as when one parent is asserting that the other parent is “unfit”, judges may require a child evaluation of custody. Parents may request an evaluation of custody even if the judge won’t. An evaluation of child custody will provide advice and information to help the judge determine what’s in the child’s interests.
The parent in custody can make the decisions regarding his child’s education, religion and health care. The courts have the option of picking one of a variety of custody. Temporary custody allows parental rights to a specific person during the separation or divorce process.
Exclusive custody grants one full parent rights in custody, except for the other parent.
The parent who is not custodial may be granted control rights or the right to supervise visitation in some circumstances. Joint custody gives parents the same rights to decide about the child’s education.
Courts grant joint custody in instances where each parent can perform their roles as parents. Suppose one parent files a lawsuit for sole custody. In that case, the suing parent has to challenge the assumption that the joint custody arrangement is in the child’s best interest.
A court may award custody of the child to a third party if that third party has asked for custody. The third party can be a grandparent or close relatives. If a marriage produces several children, a judge has the power to divide the children and assign custody to parents in line with the best interests of every particular child. Typically, however, the most significant interests of a child would be living with the child’s siblings in part to provide emotional support.
Visitation Rights
When a judge grants exclusive child custody to a single parent, the other parent retains the right to observe and interact with the child except in exceptional circumstances.
If the court’s custody order does not include rights for visitation, then it is a legal requirement that the parent has the right to have visits. So, a specific interdiction of visits must be contained in the decree to deny parental rights since visitation rights arise from parents’ being parents. Although this presumption for visitation rights is present, the courts can impose limitations on visits by parents who are not custodial.
Suppose a person convinces the court that the right to visit could be detrimental to the child’s best interests. In that case, the court has the power to refuse the right to visit.
However, the best interests of the child’s analysis cannot confer any weight on the child’s desires since parents have the inherent right to seek to repair the relationship between their child and parent.
The cases in which courts refuse visitation rights are typically parents who are not custodial and have physically or emotionally abused their kid in the past, and noncustodial parents who are suffering from mental illness that could affect the child emotionally. Parents who are in prison or have a prison history do not have to be not allowed the right to visit.
Useful Resource: How To Write a Will Without a Lawyer?
