When it comes to determining child custody rights, there are many important things to consider. If you’re going through a divorce, you’ll likely wonder if your child will primarily live with you, and if not, whether you’ll have a say in important decisions about their upbringing. If you’re a close family member or a family friend of a child who isn’t your own, you may be wondering if it’s possible to gain custody of that child.
For parents and those who are not familiar with the child custody system and family courts, you may have questions about how child custody decisions are made. In this brief post, we’ll provide some insights into the process of determining child custody.
Determining Child Custody
If you’re a parent considering divorce or are currently in the process, you likely have questions about how child custody and visitation are determined. Child custody and visitation are typically established through either an agreement between the divorcing spouses, often with the assistance of attorneys and mediators, or by the court system.
In more detail, custody and visitation decisions are typically settled in one of two primary ways in divorce proceedings:
- The parents reach a settlement concerning child custody and visitation, as a result of informal agreement negotiations (typically with the assistance of attorneys) or out-of-court alternative settlement resolution proceedings such as mediation or “collaborative law” (typically with the assistance of attorneys).
- The court decides on child custody and visitation (typically a family court judge).
Un-Married Parents and Child Custody Decisions
Unmarried parents’ child custody rights may depend on their legal recognition as the child’s parents. When parents are unmarried, they may have to establish the father’s paternity, which may require court-ordered DNA testing if not voluntarily acknowledged.
Normally, both parents possess a legal right to actively participate in their child’s life, including making decisions regarding education, healthcare, and religion. It is often preferable for parents to negotiate a child custody and visitation agreement outside of court, enabling them to craft a mutually agreeable arrangement. If parents cannot reach an agreement or if mediation fails, a family court judge will decide the case.
The court might prefer giving both parents shared custody, however, in some situations, primary custody of one parent with visitation rights by the other parent might be in the child’s best interests. The court might use several considerations when making child custody decisions, comprising of:
- Balance and continuity of the child’s home life, education, and community life
- Availability of extended relatives
- Record of abuse
- Child’s choice (typically granted more weight with older children)
- The child’s psychological, developmental, physical, educational, and special needs
- In the end, the court will base its decision on what it believes serves the child’s best interests
Non-Parental Child Custody Determinations
Other family members or caregivers, like stepparents or grandparents, may seek child custody, demonstrating parental incapacity or abandonment.
Step-parents can obtain custody rights through adoption if a parent relinquishes parental rights.
In some states, grandparents can receive visitation rights due to a “significant relationship.”
Staff, F. L. (2021, December 28). How child custody decisions are made. Findlaw. Retrieved December 12, 2022, from https://www.findlaw.com/family/child-custody/how-child-custody-decisions-are-made.html