In a perfect world, all parents would retain custody of their children after a divorce or the dissolution of a relationship. Unfortunately, this is not the case; there is sometimes an inequality when it comes to custody rights. The good news is that things are more equitable than they have been in the past; the bad news is that we can still make improvements in how custody is decided in the best interest of children. Read on to learn more about inequality when it comes to custody rights as well as tips for getting the most equitable custody agreement in your case.
The Best Interest of the Child
It is generally considered to be in the best interest of the child when they have a relationship with both parents. For this to happen, a child needs to see each parent some of the time. It doesn’t necessarily mean that they will spend exactly half of their time with each parent, but it does mean that they should be with each parent a large percentage of the time.
In many cases, this is possible, but in many other cases, it’s just not feasible. Also, in some cases, spending large amounts of time with one parent might be against the best interest of the child. For example, if a parent has a history of abusive behavior or of a drug or alcohol addiction, they might not be fit to keep the child overnight or even to have unsupervised visitation. In some cases, an abusive parent should not see his or her child at all.
In most cases, however, both parents are fit to care for the child. Even so, it might not be in the best interest of the child to spend half of their time with each parent. If the parents live in two different states, for example, or if they live several hours from each other, it’s really not feasible, particularly if the child is in school. Another consideration might be if one parent lives in a small studio apartment and the other lives in a larger house. It would be going against the best interest of the child to insist that the child spend three or four nights per week sleeping in the home where there is not adequate personal space, in most cases.
History of Child Custody Laws
The pendulum of child custody laws has swung in one direction and then the other; now it is somewhat in the middle.
During Colonial times, the father was assumed to be the custodial parent in the relatively rare situations where the parents did not remain married or together. If the parents divorced, the children remained with the father and the mother generally left the family home.
Toward the 19th century, however, things went in the opposite direction: It was assumed that since mothers were the primary caregivers while the fathers went off to work in the Industrial era, the mothers were the more fit parent. When this happened, most mothers in divorcing couples retained custody of the children and the fathers might or might not have gotten visitation rights.
The pendulum is somewhere in the middle now, with most divorced couples getting joint custody. This means that in theory, mothers and fathers both get custody of the children and that there is not a custodial parent and a noncustodial parent.
Types of Custody
There are two main types of custody, legal and physical. Legal custody means that the parent(s) can decide where the child goes to school, can take the child to the doctor without the permission of the other parent, and determines which religion (if any) the child is brought up with.
Physical custody determines where the child lives. Depending on how far apart the parents live, he or she might travel between the parents’ homes every few days, every week, every month, or just occasionally. For example, if the parents live on opposite sides of the country, the child might spend the school year with the mother and might spend the spring and summer breaks with the father while switching off winter break on a yearly basis. If the parents live in the same town, the child might spend Tuesdays and Wednesdays with one parent, Thursdays and Fridays with the other parent, and alternate Saturdays through Mondays. It really depends on the parenting plan and the specific circumstances.
Sole custody can refer to legal custody, physical custody, or both. This means that one parent has custody and that the other might or might not have visitation rights. An example of this might be that the child lives with his or her father most of the time but visits with the mother every other weekend.
How to Get Custody of Your Child
It is understandable that you might feel worried or stressed about the possibility of not receiving equal or fair treatment during your custody case. It is important to keep in mind, however, that over 90 percent of these cases are solved without the help of a judge. This means that in most cases, you and your child’s other parent will be working together to determine who will have custody of the child.
One way you can work toward a fair custody agreement is to be honest and open with your child’s other parent. You might need to work with a guardian ad litem (GAL) or with a mediator. A GAL will look at all of the issues that need to be considered when determining the custody agreement. A mediator will offer neutral, judgment-free guidance to help you and your ex-spouse come up with a fair agreement that is in the best interest of the child.
Family Law Legal Group can help you research the issues and represent yourself as you pursue custody of your child. There is no reason you should expect not to be able to spend time with your child unless there are extenuating circumstances such as abuse or an addiction. Contact us today to find out more about our services and to find out if we can help you with your child custody case.