| Child
Custody and
Visitation |
Child custody can take one of several forms. Sole custody
gives one parent physical custody of the child as well as legal custody,
the right to decide how the child is to be raised. Sole custody has
traditionally been the most common custody arrangement in the United
States.
In the past dozen years, however, a number of states have
expressed a preference for awarding joint legal custody. In a joint
custody arrangement, both parents theoretically share in making decisions
about how the child is raised. In most joint custody arrangements, sole
physical custody is given to one parent so that the child can enjoy a
relatively stable home environment. However, joint physical custody, in
which the child lives for alternating periods with each parent, has also
been awarded. Many experts feel that this arrangement can be more
difficult for the child, and such arrangements are rare.
Joint custody arrangements require the cooperation of both
parents in making decisions about issues such as schools, religion and
outside activities. If the divorce is bitter and there is a great deal of
conflict between the parents, however, a sole custody arrangement is
probably preferable. In fact, some states still look with disfavor on
joint custody arrangements, or prohibit them entirely, because they feel
that parents who cannot live together probably will have a difficult time
in agreeing on how to raise their children.
Whatever form custody takes, state laws require that the
arrangements be in the best interests of the child. At one time, courts
almost universally awarded sole custody to the mother, believing that the
child's mother was the best person to raise the child. Today, courts are
supposed to consider which parent has been the more active participant in
raising the child when deciding on granting custody. Even so, the vast
majority of children remain with their mothers after divorce.
A parent who does not receive physical custody is entitled
to reasonable periodic visitation with his or her child, which usually
takes place in the non-custodial parent's home. However, if there is a
reasonable and provable fear that the parent may harm the child, or has
been guilty of abuse in the past, the court can either require supervised
visitation or deny it entirely.
The vast amount of media attention provided to the issue of
child abuse, particularly sexual abuse, has led to a marked increase in
the number of charges of abuse hurled by one parent against another during
divorce proceedings. Because such accusations must be treated seriously by
a court in deciding issues of custody and visitation, even clearly
unfounded claims of abuse must be investigated. As a result, divorce and
custody proceedings can drag on for months longer than necessary, with the
parent accused of child abuse prohibited from visits with the children, or
allowed to visit them only under supervision by a person authorized by the
court. In a number of cases, allegations of abuse have been used as a tool
to injure the reputation of one spouse, or as a way to extort additional
support money.
No one would argue that a child abuser should be allowed the
same custody or visitation rights as other parents. However, no parent who
has not abused his or her child should ever be silent in the face of such
accusations. If you have been wrongfully accused of child abuse, there are
several organizations which can provide you with support, advice, and in
some cases, even legal assistance. One such organization with chapters in
many parts of the country is VOCAL (Victims of Child Abuse Laws). Your
attorney can help put you in contact with this group or other similar
groups in your area.
Although it may seem unfair to require a parent to pay
support when the parent who has custody denies visitation, in the eyes of
the law the issues of visitation and child support are not connected. As a
result, even if visitation is denied by the custodial parent, child
support payments must still be made as ordered. Rather than withholding
payment of court ordered child support in retaliation for being denied
visitation, the non-custodial parent must petition the court to enforce
visitation rights.
What factors do courts take into account when
deciding who gets custody of the children?
A court gives the "best interests of the child" the highest
priority when deciding custody issues. What the best interests of a child
are in a given situation depends upon many factors, including:
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the child's age, gender, mental and physical health
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the mental and physical health of the parents
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the lifestyle and other social factors of the parents,
including whether the child is exposed to second-hand smoke and whether
there is any history of child abuse
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the love and emotional ties between the parent and the
child, as well as the parent's ability to give the child guidance
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the parent's ability to provide the child with food,
shelter, clothing and medical care
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the child's established living pattern (school, home,
community, religious institution)
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the quality of the schools attended by the children
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the child's preference, if the child is above a certain
age (usually about 12), and
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the ability and willingness of the parent to foster
healthy communication and contact between the child and the other
parent.
Assuming that none of these factors clearly favors one
parent over the other, most courts tend to focus on which parent is likely
to provide the children a stable environment. With younger children, this
may mean awarding custody to the parent who has been the child's primary
caregiver. With older children, this may mean giving custody to the parent
who is best able to foster continuity in education, neighborhood life,
religious institutions and peer relationships.
Are there special issues if a gay or lesbian
parent is seeking custody or visitation rights?
In a few states, including Alaska, California, District of
Columbia, New Mexico and Pennsylvania, a parent's sexual orientation
cannot in and of itself prevent a parent from being given custody of or
visitation with his or her child. As a practical matter, however, lesbian
and gay parents -- even in those states -- may be denied custody or
visitation. This is because judges, when considering the best interests of
the child, may be motivated by their own or community prejudices, and may
find reasons other than the lesbian or gay parent's sexual orientation to
deny custody or appropriate visitation.
Are mothers more likely to be awarded custody
over fathers?
In the past, most states provided that custody of children
of "tender years" (about five and under) had to be awarded to the mother
when parents divorced. This rule has been rejected in most states, or
relegated to the role of tie-breaker if two fit parents request custody of
their pre-school children. No state requires that a child be awarded to
the mother without regard to the fitness of both parents. Most states
require their courts to determine custody on the basis of what's in the
children's best interests without regard to the sex of the parent.
As it turns out, most divorcing parents agree that the
mother will have custody after a separation or divorce and that the father
will exercise reasonable visitation. This sometimes happens because
fathers presume that mothers will be awarded custody or because the mother
is more tenacious in seeking custody. In still other situations, the
parents agree that the mother has more time, a greater inclination or a
better understanding of the children's daily needs.
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