Who Gets Child Custody?
When parents separate or divorce a question always arises: Who takes custody of the children? Unfortunately, there is no easy answer. In many instances, custody of the children is determined by agreement of the parents, in others, the court may decide. Before separating, it is always good for parents to know exactly what their rights are regarding child custody and what they may do to strengthen their case.
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Best Interests of the Child
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When deciding the issue of custody, the court is required to consider the best interests of the child. In many states, the criteria used to determine the best interests of the child are left to the court's discretion. In others, these factors are much more fully explained in the law and include the emotional ties between the child and parent, the capacity and ability to support and raise the child, desirability of maintaining a continuous home environment and even the preference of the child, if reasonable.
Established Custodial Environment
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One of the most important factors the court will consider is the established custodial environment. In most, if not all, cases the court does not want to upset the home life of a child and strives to maintain consistency for that child. It is important when parents separate, and until a custody order is entered, that both parties stay as involved and active in the child's life as possible. By staying involved, a parent may prevent an established custodial environment from forming with the other party, giving himself a greater chance for success than he otherwise would have.
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Bias
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Many fathers believe that there is a bias against them by virtue of their gender and that mothers, no matter their past history, will always be awarded custody simply because they are women. However, courts across the country have rejected the use of a parent's gender as a determining factor in custody decision. Nevertheless, it is no surprise that some judges still show a subconscious preference for mothers.
Strategy
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When preparing for a custody hearing parents should always familiarize themselves with the criteria the court will use in making its decision and be prepared to address each and every one. While the court will ultimately determine the weight of the evidence in making its decision, it is better to give the court too much information than too little.
Third Parties
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Third parties, such as grandparents, generally have no right to custody of a child. However, in limited circumstances, as when a parent's rights to a child have been suspended, or a grandparent has been established as a guardian of a child, they could potentially seek custody.
Caution
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Laws vary from state to state so consult with a licensed attorney before taking any action.
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