CHILD CUSTODY
Next to the actual decision to file for a divorce, custody may be the most emotionally-charged issue you'll face. We'll discuss some steps you can take to increase your chances of being granted custody, and address the issue of visitation rights.
Do mothers automatically get custody of their children when a separation occurs?
The courts of most states do not establish an automatic preference for either mother or father, but they do look very closely at which parent will best promote the welfare and interests of the children of the couple.
What kinds of factors do the courts consider in granting custody?
They usually look at who has primarily taken care of the child during the marriage (washing, feeding and clothing the child, for example, or helping the child with homework), who has the best approach to discipline, who has cared for the child since separation (if the couple has already separated), what work schedules either or both parents have, and how each parent can provide for the physical, emotional, educational, religious and social needs of the child.
Can a custody order be changed?
No custody order is ever "permanent." However, once a parent is awarded custody in a court order, the judge can change the custody order only if there is a substantial change in circumstances. Usually it must be proven that the change has a direct and adverse effect on the child.
Will my separation agreement protect me from the other parent snatching my child?
No. A separation agreement is only a contract between you and the other parent, not a court order. A court order is enforceable by contempt of court. Court orders of one state can be filed and registered in another state and thus be treated as if they were issued by the second state for purposes of enforcement . None of this applies to separation agreements.
If my spouse is granted custody, will I get visitation rights?
Ordinarily the noncustodial parent is entitled to reasonable visitation rights with a minor child except in extraordinary situations, such as when the noncustodial parent has a history of abusing the child. Visitation can be flexible and unstructured, assuming the parties can get along and agree on the times and terms of visitation, or it can be highly structured and rigid, with certain days and times set out with great specificity.
If the other parent does not like the present custody order, can he or she file for custody in another state?
Under the Uniform Child Custody Jurisdiction Act, which has been passed and made law in almost every state, the court in a custody case must always inquire into whether the child or children has been the subject of custody litigation in any other state. When a judge finds that another court has made an award of custody, the judge should refuse to rule on the case and refer the parent to the court that originally entered the custody order.
Won't custody be settled when I obtain a divorce?
Divorce decrees do not necessarily settle custody matters.
© Carol Ann Wilson, Certified Financial Planner, and Edwin Schilling, III, Attorney at Law, Authors of "Survival Manuals"
