Determining Child Custody After a Divorce

How the Court Establishes Child Custody

When a marriage ends, decisions must be made about where any minor children will live, how often the noncustodial parent will see the children, where they will go to school, what type of medical care they will receive, and other issues affecting their daily lives. Such issues may be agreed on by the parties but are often determined by the court. In both instances, the court typically issues a binding order setting the terms of the custody arrangement.

What Is Child Custody?

Child custody is the legal term used in most states (Texas refers to it as “managing conservatorship”) to identify the legal relationship between a parent or guardian and a minor child. There are two types of child custody:

• Physical custody—A grant of physical custody gives a parent or guardian the right to provide for and attend to the needs of the child in their home. Physical custody is more commonly awarded to one parent, with the other parent enjoying some level of visitation with the minor child. The trend over the past couple of decades, however, has been for courts to award parents some level of joint physical custody. In those situations, the intent is that the minor children spend approximately equal amounts of time in each parent’s home.
• Legal custody—Legal custody refers to the right of a parent or guardian to participate in important decisions regarding the child’s upbringing and development, including the choice of schools, religious practices, medical care, discipline, and extracurricular activities. The general preference in family law courts across the country is to encourage both parents to be regularly involved and engaged in the life of the child. Accordingly, most courts recommend joint legal custody.

How Does a Court Determine Legal and Physical Custody?

Because of the preference for involving both parents in the upbringing of the child, it’s common for a court to grant joint legal custody unless there is evidence that the behavior of one of the parents might pose a danger to the child. Concerns may involve domestic violence, substance abuse, or other actions that might put the child in harm’s way or that have done so in the past.

As a practical matter, parents often agree to most or all of the terms of custody without the intervention of the court. Nonetheless, the court typically reviews the terms and circumstances of the child custody agreement to ensure that there is no coercion, undue influence, or other inappropriate conduct by one of the parents.

With respect to physical custody, virtually every state follows the standard that places the “best interests of the child” above all other considerations. Though the “best interests of the child” may vary from state to state and from case to case, some of the common factors that courts consider when determining child custody rights are:

• Age and gender of the child
• Mental and physical health of the children and parents
• Nature of the relationship between the child and each parent before the divorce, including the ability of each parent to properly guide and discipline the child
• Ability of each parent to meet the financial needs of the child, including food, shelter, clothing, and medical treatment
• Extent to which granting custody to one parent will affect the child’s existing school, home, community, and religious life
• Lifestyle of each parent and any risks to the child posed by those lifestyles
• Impact a change of residence will have on the child’s education
• In some states, the child’s preference, if the child is of a certain age (usually somewhere between 12 and 16)

As with legal custody, courts prefer arrangements that allow both parents to participate in the growth and development of the child. However, if there are concerns about domestic violence or abuse, child abuse, substance abuse, illegal activities, or other behaviors that pose risks to the child, the court may consider that sufficient evidence to grant full physical custody to one parent. The noncustodial parent may be denied visitation or limited to supervised visitation only.

What Laws Govern Child Custody?

Most laws regulating child custody is state law, and it is for the most part the same across the country, with the exception of Massachusetts and Puerto Rico. All other states have adopted provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, a model code drafted in 1997.

Violation of a Child Custody Court Order

As a general rule, the court will set forth the terms of custody and visitation, including the dates and times that a noncustodial parent is entitled to visitation. A custodial parent may not deny the other parent the right to visitation without a court order, even if the noncustodial parent is delinquent with child support payments. If either party violates the terms of the child custody order, they can be found in contempt of court, facing monetary penalties and potential jail time.