Child Custody and Visitation FAQs

How do we decide whether sole custody or joint custody is best for our family?

This is an area where judges have a large amount of discretion. If sole custody is awarded, one parent gains exclusive physical and legal custody over the couple's child. The "custodial parent" typically has much more control over parenting decisions, from day-to-day parenting choices to deciding where and how a child will be educated. These arrangements are most common when the parents live far apart, do not communicate well, or when one parent has been deemed unfit. Though the child will usually live most of the time with the parent who has sole custody, visitation schedules and parenting plans will provide for time with the other parent.

In a shared parenting arrangement, on the other hand, both parents share decision making responsibility for the child. In some states, both parents will be designated as the "residential parent and legal custodian." Under most shared parenting agreements, parenting time is shared more equally which may also result in a proportional decrease in child support payments.

Several state laws presume that shared parenting is in the best interests of the child. All states allow for shared parenting plans when both parents seek them and the court approves. For shared parenting to work, both parents should be able to communicate well with each other in order to make mutual decisions about their child.

What are my chances of getting custody of our children - or at least being able to see them half the time?

Every case is different and there is no way to give a fair assessment of the chances of a custody award of children. In matters of child custody, the courts focus on the best interests of the child. Courts look at the facts of each case and consider a series of factors, including the child's relationship with each parent, the child's home situation and, if the child is old enough, the child's wishes. If sole custody is awarded, one parent gains exclusive physical and legal custody over the couple's child. The "custodial parent" typically has much more control over parenting decisions, from day-to-day parenting choices to deciding where and how a child will be educated. These arrangements are most common when the parents live far apart, do not communicate well, or when one parent has been deemed unfit. Though the child will usually live most of the time with the parent who has sole custody, visitation schedules and parenting plans will provide for time with the other parent.

In a shared parenting arrangement, on the other hand, both parents share decision making responsibility for the child. In some states, both parents will be designated as the "residential parent and legal custodian." Under most shared parenting agreements, parenting time is shared more equally which may also result in a proportional decrease in child support payments.

Often the terms shared parenting and joint custody are used interchangeably. However, in a true joint custody situation, both parents split parenting time equally which can be difficult for both children and parents in terms of scheduling and logistics. Shared parenting, however, does not require a fifty-fifty split in parenting time. Though more equal parenting time is common, the primary sharing referred to in shared parenting arrangements is the right to share equally in decisions regarding the child.

Several state laws presume that shared parenting is in the best interests of the child. All states allow for shared parenting plans when both parents seek them and the court approves. For shared parenting to work, both parents should be able to communicate well with each other in order to make mutual decisions about their child.

My wife is an alcoholic. I want to leave her, but I'm worried that I won't get custody of our kids. Are the courts still reluctant to grant sole custody to fathers?

The primary concern of a court rendering a custody determination is the "best interests of the child (or children)," and courts are reluctant to exclude any evidence that would bear upon the best interests determination. If you are able to present admissible evidence at trial which can show her alcohol abuse is not in the best interests of the child, the court will take that into consideration. Courts are not as reluctant as they once were to grant sole custody to fathers. In some states, there is "gender neutrality" with no presumption that either parent is a better custodial parent than the other. This applies regardless of the age of the children.

How can I (a father) increase my chances of being awarded the sole custody or a positive joint custody arrangement with my children?

The simple answer is to spend your time with them being a parent. Make sure you are participating in all of your children's activities including extracurricular and after school events, taking them to and from school, etc. Be the parent a judge would look at and determine it is in the best interests of the children to spend as much time as possible with you. Also, do not put your children in the middle between their mother and yourself. Try to minimize the amount they are exposed to the conflict and all legal issues.

Is there any legal reason why fathers should not be awarded custody of their children just as often as mothers?

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. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now 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 parent's gender.

My husband took our children with him to England without my consent. My lawyer is trying to secure an order for my children's return, but my concern is that even if we do get the order, how will we enforce compliance?

The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that provides a universal process for the return of a child who has been abducted and taken to another country. More than 80 countries have ratified the Hague Abduction Convention.

The Hague Convention does not address any of the legal issues directly related to the custody dispute. It is only concerned with returning the child to his or her country of habitual residence. Even if the parent can prove that the abduction has contributed to the child's safety, the Convention will leave those issues to be addressed by the local court. The law is clear with regard to the requirements of The Hague Convention, and parental responsibility for obeying its terms is a matter of international law.

A parent cannot take advantage of the protections provided by the Hague Convention unless the child was habitually resident in a State that is a signatory and removed to a State that is a signatory. Even then however, parents can encounter various issues fueled by political motives, social norms or expectations, or disorganization of the procedural processes of enforcement. Although the Convention calls for expeditious resolution of these cases, many cases take months or years to resolve. An additional issue that may increase the stress for an International Family, and attorneys representing them, is the child's status in the other country. Other countries' laws could favor one parent over another for its citizen children. For example, the Missouri Eastern District court found because Egypt granted custody only to fathers, and there was conflicting evidence that father sought citizenship for the child, it was not error to grant father supervised visits exercised only in the U.S.

A countries' status as a signatory or non-signatory of The Hague Convention treaty can be critical. In countries where the State is not a party to the Hague Convention, the Hague Convention procedures are not in place, and the law of that state applies when trying to return the child. There are valid concerns that often countries have different political and social interests in protecting registered citizens of the country opposed to alien immigrants or visitors.

My partner and I have two children together, but we were never married. How is custody and child support decided when dealing with children of unwed parents?

Paternity is a legal term that means fatherhood. In many states, if parents are married, the husband is automatically considered to be the father of a child born during the marriage. But, children whose parents are not married have no legal father unless the parents establish paternity. Once paternity is established, custody and child support are handled the same way as a divorce where the parent were married.

Establishing paternity is almost always in the best interests of a child. For one thing, children often receive different kinds of benefits from one or both parents. These benefits may include health and life insurance, the right to an inheritance, Social Security benefits, and, for those children who have had a parent in the military, veteran's benefits. Typically, paternity must be established in order for a child to receive these benefits from his or her father. Another major advantage of establishing paternity for a child is the right it gives him or her to financial support from the father: unless paternity is established, the father is not legally obligated to provide support. Even if the natural father of a child is presently forthcoming with support, securing the child's legal right to future support can be extremely important should circumstances change. There are also medical reasons to establish paternity. Doctors need to be aware of the father's medical history to properly gauge the inherited conditions that may affect a child's health. In addition, health problems may cause a child to need blood transfusions or tissue transplants from a compatible donor; knowing the identity of the father with certainty is important in order to find compatible relatives, especially for children with rare blood or tissue types. Finally, establishing paternity can benefit children emotionally. Knowing who both their parents are can help give kids a sense of identity and belonging. Furthermore, fathers who are involved in their children's lives often have a huge positive impact on school performance, behavior and other measures of a child's wellbeing - officially establishing paternity can help foster meaningful father-child relationships.

Contrary to popular belief, simply being on a birth certificate does not give a father an enforceable custody order. If a father does not file a paternity case, a common scenario is where there is an administrative child support order put in effect against the father through the Division of Child Support Enforcement. Yet, while paying child support, the father still has no child custody schedule and right to see his child or be an equal decision-maker.

Under what conditions will a judge grant my request for visitation with my grandchild?

This varies greatly from state to state. In Missouri, grandparents often face an uphill battle when enforcing these visitation rights. Determining whether or not grandparents are entitled to visitation can be complex. The court sometimes requires a home study performed by a court-appointed investigator. The court may also appoint a guardian ad litem to help determine the best interests of the child. It may also consult with the child regarding the child's wishes. But, even in instances in which grandparents are the primary caregivers to grandchildren, they often have limited rights to custody and visitation in many states. Similarly, grandparents routinely have to deal with limited access to grandchildren if their child gets divorced and is not granted primary custody of the grandchildren - especially if the other custodial parent makes it difficult for the grandparents to see the grandchildren. Under Missouri law, a grandparent may seek visitation rights with a grandchild in a variety of circumstances, including:

  • When the child in question has lived with his or her grandparent for at least six months within the 24 months before the grandparent files a petition seeking visitation; and when a grandparent has been "unreasonably denied" visitation with the child for more than 90 days - unless the parents of the child are still married and living with the child, in which case the grandparent cannot file a petition for visitation
  • When the parents of the child file for divorce, a grandparent can intervene for the sole purpose of seeking visitation rights
  • When one parent of the child dies, and the other parent denies the grandparent "reasonable visitation," a grandparent can seek visitation rights from the court

Interestingly, it is not a prerequisite under Missouri law for the parents of a child to be married in order for the grandparents to petition for visitation rights. For instance, grandparents can still seek visitation if their son - the putative father of the child - is not married to the child's mother or has never developed a relationship with the child.

It is important to note, however, that grandparents do not have an automatic right to grandchild visitation - unlike noncustodial parents. For instance, grandparents must proactively seek intervention, and they bear the burden of proving that it is in the best interests of the grandchild for the court to grant them visitation rights. Consequently, if you are a grandparent and are currently seeking to establish visitation rights with your grandchild, it is often advisable to speak with an experienced grandparent rights attorney to learn what your rights and options may be given your circumstances.

Will my separation agreement prevent my ex-spouse from snatching our child and leaving the state or country?

A separation agreement can't stop a spouse from leaving. However, there are many ways in can be helpful in helping to bring the child back. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was enacted in 2009. It replaced the long-standing Uniform Child Custody and Jurisdiction Act. The UCCJEA outlines a state's jurisdiction over custody cases that involve children who live in other states. One of the main purposes of the UCCJEA is to keep a parent from essentially kidnapping his or her children, moving to another state and establishing a parenting plan that excludes the other parent. The UCCJEA has established definitions regarding a child's "home state" and which courts have jurisdiction to order a parenting plan. The Hague Convention on the Civil Aspects of International Child Abduction is a treaty that provides a universal process for the return of a child who has been abducted and taken to another country. More than 80 countries have ratified the Hague Abduction Convention. The Hague Convention does not address any of the legal issues directly related to the custody dispute. It is only concerned with returning the child to his or her country of habitual residence. Even if the parent can prove that the abduction has contributed to the child's safety, the Convention will leave those issues to be addressed by the local court.

If one state awarded my spouse custody, can I file for custody in another state?

Almost every state and the District of Columbia have enacted a statute known as the Uniform Child Custody Jurisdiction and Enforcement Act, which sets out standards for courts to make custody determinations and standards for when a court must defer to an existing determination that originated in another state. Of the fifty states, only Massachusetts and Vermont currently do not follow the Uniform Child Custody Jurisdiction and Enforcement Act.

In general, under the Uniform Child Custody Jurisdiction and Enforcement Act, a state court can make a decision about a child custody arrangement if (these are in order of preference):

  • The state making the decision is the child's home state. For a state to be a child's home state, the child must have resided with a parent in the state for at least six months prior to the legal action being brought, or the child must have been residing in that state but is absent because a parent removed the child from the state.
  • The child has significant connections with people in the state. These connections can include connections with teachers, doctors and grandparents, to name a few. In addition, there should also be substantial evidence inside the state that concerns the child's care, protection, training and personal relationships, like friends.
  • The child is in the state for safety reasons. Generally, this means that the child is in the state after being removed from another state for fear of abuse, neglect or abandonment if sent back to the other state.
  • No state can meet one of the three above tests. In general, this means that no state can meet any one of the above three tests, or a state can meet at least one of the three tests but has declined to assert jurisdiction over the matter.

Under the Uniform Child Custody Jurisdiction and Enforcement Act, if a state court cannot meet any of the above requirements, the court cannot issue a child custody judgment even if the child is currently present in the state. In addition, if a parent has wrongfully removed and/or retained a child in a state in order to make that state the child's home state, the parent will be denied custody. If more than one state can meet any of the above tests at the same time, the Uniform Child Custody Jurisdiction and Enforcement Act dictates that only one state can issue a child custody judgment. In practical terms, this means that if a state court in one state makes a decision before another court in a different state, the judgment of the first court will be binding.

Will we have to wait until the divorce is final to resolve all custody issues?

No. After a petition has been filed or in conjunction with it, either party can file temporary motions for the court to rule on specific issues that cannot wait to the conclusion of trial to be settled. There are both advantages and disadvantages to filing pre-trial motions. The filing of pre-trial motions can drag out the divorce process which can lead to a financial burden for the party with fewer resources. On the other hand, the advantage to pre-trial motions is having some things decided temporarily on important issues that otherwise need to be resolved. Temporary orders can also lead to settlement or at least for you to get a sense of what the opposing party is like. Depending on the jurisdiction pre-trial temporary motions may not be called "temporary orders," some jurisdictions call them "pendente lite" or "interlocutory" orders. Temporary orders should be filed in the same county that the divorce petition has been filed.

The most commonly filed child custody temporary order is for expedited emergency relief, pendente lite, temporary orders or ex-parte application depending on the jurisdiction. In order to prove that an emergency temporary order for custody is warranted, the attorney may have to provide the court with evidence either of physical abuse or that the child is in imminent danger of abduction. This can be achieved through affidavits from eyewitnesses, reports from counselors, medical professionals, teachers, neighbors or the police. Another good option for proving the necessity of an emergency child custody arrangement is by having your client's child see a forensic mental health professional to present the court with a detailed and recent affidavit from a licensed mental health professional who can advance your client's position.

For non-emergency temporary child custody orders, they generally should be in the form of a fully noticed pendente lite or temporary custody motion. These are common motions in family law cases that can help ensure that both parties are able to see the children during the pendency of the divorce.

Child support can be also generally be sought through pendente lite or pre-trial motions during the pendency of the case. The laws can vary by state and county, but generally, support would be granted retroactively to the date of the filing of the motion or the date of the service of the divorce petition.

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