Legal Separation & Child Custody
According to Divorcenet.com, about half of all marriages in the United States will end in either divorce or legal separation. As shown by the Law Offices of B.J. Fadem, courts view divorce and legal separation very similarly, even using the same forms for both motions. Because of the way the courts see divorce and separation and because separation often precedes divorce, child custody is a hot issue in legal separations.
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Factors
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In legal separations, courts use the same factors as in divorce cases to make a decision on who gets custody of a child. These factors are examined in an effort to determine what is in the best interests of the child. Usually courts look at factors such as the soundness of mind of each parent, evidence of abuse, the ability to provide a financially and emotionally stable environment for the child and access to friends and relatives. Courts also look at what the child prefers, although this may have less of a bearing on the final decision than other factors, especially in cases with very young children.
Topics
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There are two major topics addressed in custody hearings in legal separation cases. These include temporary child support and visitation schedules. Most disputes and reappearances in court are the result of violations of the agreements forged on these issues.
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State-By-State Status
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As shown by Womansdivorce.com, not every state recognizes legal separations, so making arrangements for custody may be difficult if parents choose to relocate to different states prior to filing for separation. The states that don't recognize legal separation are Delaware, Florida, Georgia, Louisiana, Mississippi, Pennsylvania and Texas.
Separation Agreements
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The exact terms of child custody in legal separation custody are detailed in formal documents called separation agreements. These documents address items such as the precise amount of child support to be paid and whether visitation will be supervised. Courts rely on these legal documents as the basis for determining whether a parent has violated the custody terms, so the separation agreement needs to be detailed and free from ambiguity.
Types
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As with divorce, custody in legal separation is divided into two types: physical custody and legal custody. Physical custody means that a parent is responsible for the daily care of the child, including the provision of food and shelter. Legal custody means that the parent is authorized to make decisions on how the child will be raised (e.g., which religion the child will follow). It is possible for one parent to have physical custody and the other parent to have legal custody, but usually one or both parents have both types of custody.
Considerations
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Amy Baker of Firstwivesworld.com emphasizes that there are three major considerations parents going through a legal separation should address. The first is that they have an attorney and don't make decisions without legal counsel. The second consideration is that the child has consistency even as their needs change. Lastly, Baker recommends that parents determine whether the child custody agreement balances their own needs against the needs of the child.
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References
- Photo Credit child image by Renata Osinska from Fotolia.com
