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Child Custody
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How to Take Custody of Your Child

Deciding who will be taking custody of children during a divorce is among the more emotional issues separating parents make. In most cases, parents reach an agreement, with the help of their lawyers and/or a third-party, neutral mediator, without having a judge decide which parent should care for the children on a day-to-day basis.

In less than 5 percent of divorces, a judge must sort through the issues to determine the parents' legal rights, according to the American Bar Association, a professional organization for attorneys. In making the decision about who will be taking custody of the children, a judge will consider many factors, but the overriding concern is always the "best interests of the child."

Deciding Temporary Custody Comes First

There are several types of custody. For couples who have only recently decided to divorce, temporary custody - with whom the child will reside while the divorce's details are being hammered out - is the first issue that must be decided.

Temporary custody offers the children involved stability during the divorce process and prevents "child snatching." Without a temporary custody order, one parent can legally take a child and refuse visitation to the other parent.

Parents can include a request for temporary custody order in their divorce papers, or request one shortly thereafter. Each parent will have a chance to present his case to the judge, either in person or through written statements called affidavits.

Paying attention to the judge's comments and ruling at the temporary custody hearing will give parents insight into how the judge might rule when making the final custody decisions.

Although a parent who wins temporary custody of the children may have a leg up on getting permanent custody, it is no guarantee. Non-custodial parents should stay in their children's lives, keeping track of their visits with the children and the money spent on them. Non-custodial parents who want to take temporary custody away from the father or mother and win permanent custody need to show they, too, offer a stable and secure environment for their children.

Permanent Custody

Generally, courts favor joint custody when both divorcing parents want to be involved in their children's lives and judges find them fit to do so. There are two types of joint custody, according to the ABA. Joint legal custody allows both parents to be involved in decision-making for the child, i.e., school, health care, religious training, extra-curricular activities, methods of discipline, etc.

Joint physical custody refers to time spent with both parents. This can be worked out a number of different ways; everything from alternating every two days to every six months. It is possible for a parent to have joint legal custody without having joint physical custody.

Judges decide permanent custody in one of several ways. They may accept the custody plan as spelled out by the parents themselves in their separation agreement.

If the parents cannot agree, judges may order them to have a neutral, third-party mediator help them reach a meeting of the minds. Mediation, which allows parents to discuss custody in a less-hostile, less- stressful environment, is mandatory in some states.

Judges may have a lawyer assigned to represent only the children (called a guardian ad litem) to help determine what is best for them. Some states, such as Connecticut, have specialized courts just to deal with custody issues.

If none of these approaches works, judges will then oversee a trial to determine who should have custody.

Many Factors Are Weighed in Deciding Who Should Take Custody

To figure out what exactly is in the best interests of the children, judges consider many factors when making a custody ruling. Among them are:

  • Which parent is more suitable based on character, temperament, child-rearing skills, home environment and stability (financial and emotional)
  • The relationship between the child and each parent
  • The education level of each parent
  • Any illness or health care issue the child or parents may have and which parent can attend to these needs better
  • With which parent has the child lived primarily
  • The effect on the child if the existing custody arrangement is disrupted

Children, too, will sometimes get a chance to indicate with which parent they prefer to live, if the judge believes them to be of sufficient age and maturity to offer an opinion. In two states, Georgia and West Virginia, children 14 years and older have an "absolute right" to choose the custodial parent, as long as the judge views the parent to be fit.

In other states, a judge may consider the reasons why a child might state a preference. If the child appears to have been coerced or bribed by a parent, a judge is unlikely to give the child's stated preference much weight and may indeed decide against the manipulating parent.

In general, judges favor parents who show that they encourage and support open relationships with the other parent and other relatives.