When child custody is contested in a divorce, it can be one of the most emotional and challenging parts of the legal process. It’s crucial to understand your rights and the factors the court will consider when making decisions about custody. Here’s a breakdown of what you should know:
1. Right to Seek Custody
As a parent, you have the right to seek custody of your child during a divorce. The court will consider both parents' wishes and try to create an arrangement that serves the child's best interests. This includes both legal custody (decision-making power for your child's welfare) and physical custody (where the child lives).
2. Best Interests of the Child
The primary factor that courts use to determine custody arrangements is the best interests of the child. This involves looking at various factors to ensure that the child’s physical, emotional, and psychological needs are met. Some factors the court will consider include:
- The child's age and health
- The emotional bond between the child and each parent
- Each parent's ability to provide for the child's needs
- The child's preference (especially if the child is of sufficient age and maturity)
- The stability of each parent's home
- Any history of abuse or neglect by either parent
- The parent's ability to cooperate in parenting and facilitate the child's relationship with the other parent
3. Legal Custody vs. Physical Custody
There are two types of custody that the court will consider:
Legal Custody: The right to make major decisions about the child’s life, including education, healthcare, and religion. Courts often prefer joint legal custody, where both parents share decision-making responsibilities. However, in some cases, one parent may be awarded sole legal custody if the other parent is unable or unwilling to cooperate.
Physical Custody: The right to have the child live with you. Physical custody can be joint (where the child splits time between both parents) or sole (where the child lives primarily with one parent, and the other parent has visitation rights).
4. Joint Custody vs. Sole Custody
Joint Custody: The court generally favors joint custody arrangements because it allows both parents to be involved in the child's life. However, joint custody isn’t always possible if there is a history of conflict or if one parent is deemed unfit. Joint custody can be either legal or physical (or both).
Sole Custody: Sole custody is granted when one parent is deemed to be the most capable of providing for the child's best interests. The other parent may still have visitation rights, but they will not be involved in major decisions regarding the child.
5. Visitation Rights
If one parent is granted sole physical custody, the other parent may be granted visitation rights. These rights vary based on the specifics of the case, but they generally allow the non-custodial parent to spend time with the child on a regular basis. The court will establish a visitation schedule that works for both parents and the child. If there are concerns about safety, the court may order supervised visitation.
6. Mediation and Alternative Dispute Resolution
In contested custody cases, many courts require mediation or other forms of alternative dispute resolution (ADR) before proceeding to trial. Mediation involves a neutral third party who helps both parents reach a custody agreement. If mediation is unsuccessful, the case will proceed to court, where a judge will make a decision.
7. Rights to a Fair Hearing
As a parent, you have the right to a fair hearing where you can present evidence, testimony, and any relevant information to the court. This includes the ability to:
- Present witnesses who can speak to your relationship with your child and your ability to provide care.
- Provide evidence such as medical records, school records, or anything else that supports your ability to provide for your child’s best interests.
- Challenge the other parent’s evidence and present your case.
8. Parental Alienation
Parental alienation occurs when one parent attempts to turn the child against the other parent, often through manipulation or negative talk. If you suspect that the other parent is engaging in parental alienation, it’s important to bring this to the court’s attention. Courts take this issue seriously, as it can harm the child's relationship with the other parent.
9. Temporary Custody Orders
In cases where the divorce is ongoing, and the custody arrangement is being contested, the court may issue temporary custody orders. These orders will determine where the child will live and who will make decisions about their welfare until the final custody arrangement is determined.
10. Modification of Custody Orders
Once custody has been established, either parent can seek to modify the custody arrangement if there has been a significant change in circumstances. For example, if one parent moves far away, or if there are concerns about the child’s safety, the court may agree to modify the arrangement. It’s important to note that the court will only modify custody if it’s in the child’s best interest.
11. Enforcement of Custody Orders
If one parent is not adhering to the custody order (e.g., refusing to allow visitation or not following the agreed-upon schedule), the other parent can petition the court for enforcement. In some cases, the court may impose penalties or modify the custody order to ensure compliance.
