Common Custody Issues
Children of parents who are divorced often blame themselves for the split between their parents. However, children are rarely the cause of their parents’ divorce. Children are often confused by the divorce process, especially if they hear their parents fighting over them. And in many divorce cases where children are involved, the parents fight over issues of child custody. Neither parent wants to miss out on pieces of their children’s lives.
When the parents first separate, child custody and visitation becomes a touch subject. Both parents want to spend the same amount of time with the children as they previously did, but this is not possible when living in separate homes. Until a court motion is filed, both parents have equal rights to the children, which can cause some complicated situations. In some cases, one parent is afraid that the other parent may not return the child if she allows visitation. This can result in withheld or supervised visits, which is not a comfortable situation for the other parent.
While it is understandable that a parent who fears that the children will not be returned may withhold visitation, it can be a dangerous undertaking. The other parent may feel alienated and this can result in a bigger fight over the custody of the children. The courts in many states determine custody and visitation based on the best interest of the children, which, in most cases, means time with both parents. When the court determines one parent to have primary custody, the judge looks at the willingness of each parent to encourage a relationship between the children and the other parent. Withholding visitation can appear to be discouraging this relationship and can result in loss of custody.
A good alternative to withholding visitation is to offer visits in your home with you present or in a public location. If the other parent really wants to see the children, he will comply. However, even if you are present for the visits, it is important to give the children and the other parent some privacy. If the visits are in your home, spend time in other rooms in your home, catching up on housework or your reading. If you choose a public location, such as a park or child-friendly restaurant, sit somewhere else while your children and the other parent interact. This type of visit is only necessary until paperwork is filed and temporary orders are set.
The rights of unmarried parents can vary widely by state. However, for the most part, the mother is presumed to have sole legal and physical custody of the children until a motion is filed otherwise. In some states, the father must establish paternity through a DNA test before he can file for custody and visitation rights to his children. Other states allow a voluntary admission of paternity. Until paternity is established, the mother does not have to allow the father to see the children, though it can be used against her if she doesn’t.
The judge seeks to set a custody and visitation plan that is in the best interest of the children involved, not the best interest of the children. Some states prefer to give parents a more equal split when it comes to custody. Other states make one parent the primary parent and give the other parent periods of visitation. When the parents cannot agree to a custody and visitation agreement and the judge cannot make a decision, a law guardian can be appointed to represent the children. A custody evaluation interviews everyone involved in the case, inspects both homes and makes a recommendation based on the findings to the judge. These recommendations are often accepted by the judge, but can be changed by the judge.
When most people hear the word “custody” they think of where the children live. However, in a family law court case, custody also has another meaning. Legal custody is almost always shared between the two parents. In some cases, one parent may be given the final say if the parents cannot come to an agreement. Legal custody essentially gives both parents the right to the children’s medical, dental and school records and decision-making rights. Unless a parent proves to be a danger to the child, she is likely to receive joint legal custody.
Each state has its own set of visitation guidelines that detail the standard visitation for children of various ages. In states that more frequently issues shared physical custody, the visitation schedule varies. For some, children are with one parent one week and other parent the following week. Others split the week up into sections, such as two days with one parent, two days with other and then three days with the first parent and then alternate for the following week. The most common standard visitation for a noncustodial parent is every other weekend and one evening a week.