Marriage Defenders

With Justice for ALL (quote from the pledge of allegience U.S.A.)

This is an informational website offering support not legal advise

Issue - Child Custody and Visitation

What are the basic forms of child custody? There are two different kinds: legal custody and physical custody. A parent who has legal custody has the right to be involved in all the decision making typically involved with being a parent, such as:

- religious upbringing

- schooling health and medical decisions

- moral development

The guiding principle in custody decisions is this question: What is in the best interest of the child? There is no single definition of what is meant by this very broad concept. It is tied to the facts of each specific situation and allows a judge to do what he or she thinks is best for a child based on the particular circumstances.

Custody can be either sole or joint. In the past, it was common for a mother to receive sole legal and physical custody, thereby pretty much shutting fathers out of the parenting process once a divorce occurred. However, the recent trend is towards joint legal custody, so that both parents have an equal involvement in the major life decisions affecting their child, regardless of who has physical custody.

Sole legal custody is becoming less common, and most courts prefer to keep both parents actively involved in their children's lives unless there is a very good reason why they should not be. One such good reason would be abuse or neglect.

Since joint legal custody doesn't usually mean that the children live half the time with one parent and half with the other, it is necessary to work out a schedule of visitation that will be incorporated into the final divorce order. Everyone should work out a schedule that meets their own particular needs. Typically, the non-residental parent will have the children every other weekend (Friday to Sunday) throughout the year and will visit one night or two during the week. Major holidays and birthdays alternate.

The guiding principle in working out a schedule should be what is in the best interests of the child. If one parent often travels during the week, it may be more feasible for the children to live with that parent during the weekends. Also, when making a schedule it is important that both parents have quality time with the children. Thus, it would be unfair to a working mother with physical custody if the children spent every weekend with their father.

As joint legal custody becomes more prevalent, it is also becoming more common for a father to have joint physical custody of the children. In fact, there is an active and growing "father's movement" that is seeking to refute some of the assumptions on which custody decisions have typically been made, namely that children of a very young age are best off with their mother. Joint physical custody doesn't necessarily mean that the children live exactly one-half of the time with one parent and one-half with the other. It does mean that both parents spend a substantial amount of time with the children.

It is important that your divorce not become a battle over custody if that is not genuinely an issue; custody should not be used as a threat or a weapon. However, if you genuinely feel that sole legal custody is appropriate or that you are the more appropriate residential parent, you should certainly make your feelings known.

Is the preference of the children considered in custody decisions? Very possibly. Generally, when judges have to make a custody decision, they will interview the children in private. The age of the child will determine how much weight the judge gives to his or her preferences. For example, a three-year-old really can't make a choice about custody because he or she is too young to understand the ramifications of that decision. In contrast, a teenager may have some very clear preferences and some very strong reasons to back them up. The older the child gets, the harder it is to compel him or her to obey a custody and visitation order, so an older child's wishes will carry more weight.

Judges will listen very closely to what the children have to say. If the judge determines that the child has been coached or bribed or convinced in some way to choose one parent over the other, the judge will generally disregard those statements and may penalize the parent who influenced the child.

Can one parent decide what religious upbringing the children will have? Not if the parents have joint custody, and certainly not if their divorce settlement stated that the children were to be raised as Catholics. If it did, then raising them in any kind of religious institution against the wishes of the other spouse would be a violation of the settlement agreement. The other spouse could apply to the court for a restraining order. If no previous decision was made and they have joint decision-making power, a court would hear both positions and determine what is in the best interests of the children under the circumstances.

Spouses in this type of situation may need to seek counseling together in order to resolve this issue. The religious upbringing of children, just like their education, is typically a decision for both parents, if you have joint custody, and you should not hesitate to seek court intervention if your former spouse is disregarding your wishes on such an important issue.

Could one parent stop paying child support to protest how the children are being raised or because visitation is being denied? No. Generally, child support is a court-ordered financial obligation. One parent's displeasure with an aspect of custody or even a denial of visitation does not allow for a unilateral termination of the child support obligation. The remedy is to go to court.

Can custody go to somebody other than the parents? In very rare cases where it would be inappropriate to award physical custody to either of the biological parents, the child may be placed with someone else. Generally, however, the rights of biological and adoptive parents are superior to the claims of any other relative by blood or marriage. If the biological parents feel that a grandparent or step-parent would be a better custodian for their child, they can certainly agree to that arrangement.

Can a parent be denied custody because he or she is gay? The rights of homosexual parents are only recently being recognized. For a long time, a gay parent could not obtain custody of his or her child, because it was felt that such a person's lifestyle was wrong or immoral. However, as with many other lifestyle choices, such as interracial marriage or single parenthood, the laws in most states have recognized that the simple fact that a parent is gay should have no bearing on whether he or she is unfit to raise a child. As with all custody decisions, the important question is what is best for the child and what bearing the parent's lifestyle--be it gay or heterosexual--will have on the child.

Under what circumstances can the custody be changed? The reasons for a change in custody will vary from state to state. In general, however, if it becomes inappropriate for one reason or another for a parent to have physical or legal custody, the other parent can attempt to have custody changed. For instance, if the parent with custody becomes involved with drugs or other illegal activities, thus exposing the children to immoral and unlawful behavior and to physical danger, it would likely merit a change. (Of course, the court would require proof of this.) On the other hand, if the parent with physical custody chooses to live with someone without being married few courts are likely to interfere.

You should contact a lawyer to determine what the law is in your state regarding change of custody.

What happens if the parent who has custody dies? Custody would generally revert to the other parent. If that parent would not be an appropriate caretaker a third party could intervene on behalf of the child.

Can a parent be denied visitation rights after a divorce? Yes, but only under extremely limited circumstances. In general, it is presumed that it is in a child's best interests to have contact with both parents. It is only if the parent (or the parent's behavior) is a threat to the child in some manner that visitation will be denied. For example, if it is demonstrated that the parent abused the children in some way, a judge may determine that it is best not to permit the parent and children to be alone together. The person seeking to prevent visitation will have a very heavy burden to prove that circumstances justify a total denial of contact.

An alternative to no visitation is supervised visitation, where the parent sees the children in the presence of a third party who will be able to prevent any harmful action. The person who supervises can be a family member, close friend, counselor, or clergyman. Some communities have court-supervised visitation programs, in which a government worker or volunteer oversees the visit.

Can an ex-spouse who has custody move with the children to another state? Not unless the court gives permission or the ex-spouse consents. The rules vary from state to state, and you should consult an attorney to find out what your local laws are. The obvious problem with moving out of state with the children is that it will usually interfere with your former spouse's visitation with the children. (A parent who does not have physical custody can move anywhere he or she wants.)

You will be asked about the reasons for your move. The questions might include: What impact will the move have on the children?

Will you find opportunities there that are unavailable here?

How far away are you moving?

What will the impact be on your former spouse's visitation rights?

Are you doing this just to thwart your spouse's visitation?

Everything depends upon the specific circumstances of your case, as well as the law in your state. It may be, for instance, that by moving out of state, you only add a few minutes or a half an hour onto the drive, and the visitation times can be adjusted to account for that time. Or, if you have enough money and an airport is convenient to both of you, your ex-spouse may agree to see the children for several longer visitations each year instead of every other weekend.

If you move without the consent of your former spouse or court permission, you may be arrested for kidnapping, so you really should consult an attorney if this problem arises for you.

Note: While you may be restricted from moving even one mile if it means you'll cross state lines, there are no limitations on your freedom to move within the same state--even if it's 200 miles away, unless your divorce agreement specifically restricts your ability to move.

Does a grandparent have the right to visit the children after a divorce? In general, no one other than the child's biological or adoptive parents and, in some states, siblings, have an automatic right to visit. Grandparents and other relatives may see the child when the custodial parent permits it, or when the non-custodial parent has visitation. Many states provide for grandparent visitation if it is demonstrated that such visitation would be in a child's best interests.

As with all issues in a divorce, the parties involved may agree to whatever terms and provisions they want. Thus, if you and your spouse want to allow grandparents to visit, you can negotiate to include such a provision in your divorce settlement.

Do step-parents have a right to visit? Not usually, unless it is demonstrated that visitations would be in the best interests of a child. This is especially true when a step-parent has assumed the role of parent. And again, you and your spouse could agree to include a visitation arrangement in your divorce settlement.

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