Since our firm has handled countless family law cases, we continually receive questions about child custody. Issues regarding child custody are certainly hot button topics amongst parents. After all, your children are your most precious commodity and when their well-being is in question Momma Bear and Papa Bear should come out to protect that child. However, sometimes people let their emotions get the best of them and things can get ugly real quick. Although every case is different, there are some issues or questions that arise more than others. For example, “Which parent has the right to sole custody without a court order?” or “How much weight should a court give to a child’s custody preference?” Here are a few more common child custody questions/issues.
Which parent has the right to sole custody without a court order? Many people believe that sole custody automatically goes to the mother. Back in the day, pre-1970s, that was true due to the Tender Years Doctrine. This doctrine was considered to be one of the strongest presumptions in the law throughout the United States as it presumed that young children should be in the custody of their mothers. The only way a father could win custody over the mother is to prove her unfit, which was a rarity back in the day. Thankfully, under most circumstances today, both parents have equal rights to the custody of their children.
How much weight should a court give to a child’s custody preference? In situations where the child is making a preference as to which parent he or she wants to live with, the judge will consider a few factors. One of which is the child’s age as the judge is more likely to give more weight to a teenager’s preference over that of a young child. The judge will also want to speak with the child to make sure he or she has not been coerced in any way.
Distinguishing the difference between joint legal custody and joint physical custody. Joint legal custody is when both parents have the right to make all decisions on behalf of the child, but does not necessarily mean the child lives with both parents 50 percent of the time. Common decisions that would fall under joint legal custody are health/medical care and treatment; education; religion; and discipline. Joint physical custody gives both parents the right to allow the child to live with each parent 50 percent of the time. It is worth mentioning that if a parent was given sole physical custody, he or she does not have the right to make decisions on behalf of the child if legal custody was awarded to the other parent.
What happens if a custodial parent dies? It is always unfortunate when a child loses a parent whether or not that parent had legal and/or physical custody. If a parent dies that had sole custody of a child, the courts favor awarding custody to a parent over a nonparent. However, the noncustodial parent must apply to the court for a modification of the original order that awarded custody to the deceased parent.
Can a custodial parent move to another state with the child? Moving without first obtaining the approval of the court is never advisable. Most custody arrangements address this issue. Typically, it specifies how far a custodial parent can move with the child. If a custodial parent has a good reason, like a new job, etcetera, the judge is likely to modify the agreement.
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