If there are children from the marriage, the divorce decree will specify who gets custody of the children. When one spouse is awarded custody of the children, the other will be awarded visitation rights. If the spouses are able to work out an agreement on custody and visitation on their own or with the assistance of their lawyers or a mediator, the court will incorporate the agreement into the divorce decree. If the spouses cannot resolve the issue, the court will decide the issue according to the state law.
Physical and Legal Custody
The child will live with the parent who is awarded physical custody of the child. When one parent is given physical custody of the child, the other is given legal custody. Legal custody refers to parental rights and responsibilities of decision making with regard to a minor child. In fact in most cases, the custodial parent will have to share legal custody of the child with the non-custodial parent.
In many cases, the spouses agree on a joint custody arrangement. Under this type of custody arrangement, both parents share legal and physical custody. the child spends equal (approximately and not necessarily 50-50) time with each parent. This type of an arrangement can work only if there is a lot of co-operation between the parents. Unless the court is satisfied that the parents will co-operate to make the arrangement work, it will not approve of such an arrangement.
This type of custody arrangement is generally used in situations where there are more than one children from the marriage. One spouse gets custody of some of the children and the other gets custody of the remaining children. Courts do not look at this arrangement favorably as it involves separating siblings.
In case the parents are unmarried, the law in most states award sole physical custody to the mother unless the father requests for custody. Even if the father requests custody, the courts seldom grant custody to the father in such cases but the father has priority over other relatives of the child and will be awarded visitation rights.
Factors Affecting Custody
The court considers many factors when deciding child custody. The court will also consider the best interest of the child and who is the primary caretaker of the child. In case of older children, the children’s preference too can play an important role. The standard for determining the best interest of the children varies from state to state. Here are some of the factors that courts generally consider when deciding child custody:
• Health (mental and physical) condition of the parents
• Child’s preference (in case of older children)
• Need for continuity
• Cultural and religious norms
• Educational requirements of the child
• Child’s sex and age
• Child’s Relationship with other members of the household
• Child’s relationship with the extended family of both parents
• Parental suitability of each parent
• History of abuse
Besides the above factors, the courts tend to favor the parent who demonstrate that he or she has been the primary caretaker of the child during the marriage. The bond between the child and the primary caretaker is a key factor. For children, this bond is important for successful mental and emotional development and growth. To determine who is the primary caretaker, the court will consider the role of both parents in the following activities associated with the child:
• Dressing, grooming and bathing
• Planning and preparation of meals
• Buying clothes and laundry responsibility
• Medical care arrangements
• Encouraging the child to participate in extracurricular activities
• Teaching the child to read, write and count
The court may consider other factors depending on your state law. In some cases, the exposure of the child to second hand smoke have also been considered by the courts. In the past, mothers were considered as the primary caretaker and the courts tended to award custody to the mothers but times have changes and the courts now recognize that fathers too can be the primary caretaker and cases of fathers being awarded custody of the children are becoming increasingly common.