Child custody is often the most hotly contested issue in a divorce. Every parent would want his or her child to live with him or her after the divorce and continue taking decisions that will affect the welfare of the child until the child becomes an adult. Sometimes, a close relative of the child may also be interested in getting custody of that child.
When it comes to the issue of child custody, the main legal question is how does the court decide child custody? This section will provide you with the answer to that main question.
If there are children from your marriage, then the issue of child custody will be very important. Generally, child custody like the other issues of the divorce like property division, child support and alimony can be decided mutually between the divorcing spouses or the court can determine who gets custody if the spouses do not have an agreement on the issue.
The commons ways of resolving the issue of child custody and visitation out of court are:
• The parents reach an out of court agreement through
– By mutually negotiating with each other and entering into an agreement
– By using mediation, collaborative law process and other alternative dispute resolution mechanisms to reach an agreement
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.
Unmarried parents can resolve the issue of child support in the same way as married couples – either through an agreement or through court litigation. But they need not resolve the other complex issues of the divorce such as spousal support and property division. As such the process of resolving the issues of child custody and visitation is much easier for unmarried parents compared to married couples.
If the court has to determine custody when the parents are unmarried, the court will consider who the primary caretaker of the child is.
Non-Parental Child Custody
The law has provisions for awarding custody of the children to persons other than the parents. Grandparents, uncles, aunts, close family friends and other can apply to get custody of the children. However they must prove that it is in the best interest of the children that they be awarded custody of the children. Different states use different terminology to describe this type of custody. The child’s parents will be asked to respond to the application.