Child custody laws vary according to jurisdiction, but most states and provinces follow a basic set of concepts designed to be fair and equitable and protect the interests of the children.
If you’re a party in a child custody action, understanding child custody laws and their application is important to ensuring a favorable outcome for you and your child. You may have retained counsel in your child custody action, but a basic understanding of the law will make you an informed participant in the proceedings and help you ensure your attorney is acting with due diligence.
The intent of child custody law is to reach a decision in "the best interests of the child." A child custody decision in "the best interests of the child" demands consideration of the wishes of the parents, the child, as well as the child's relationship with each parent, their brothers and sisters, and other influential persons. Other factors considered are, the child's home environment, school, and community, and the parents’ physical and mental well-being.
In child custody law actions, the court determines which parent should have physical and legal custody of the child or children who are the subject of the action.
Physical custody means that a parent has the right to have a child live with him or her. Many states’ child custody laws prefer to award joint physical custody to both parents, allowing children to spend equal amounts of time with each parent.
In child custody law, legal custody refers to the right to make decisions about a child’s upbringing, which includes decisions about the child’s education, religion and medical care. Parents with legal custody of their children also receive any tax benefits awarded to parents by state and federal government.
The current trend in child custody law is a preference by courts to award joint custody to parents, based on the reasoning that having access to both parents is in a child’s best interest. In most applications of child custody law, joint custody means that each parent shares equally in the decision making process and tax benefits are also equitably shared.
In child custody law, when a court awards sole legal and physical custody to one parent, the non-custodial parent is awarded visitation rights. These rights may be extensive or limited according to the circumstances of the case. A strong presumption in child custody law exists toward awarding visitation rights to non-custodial parents, however, courts may impose restrictions on visitation by non-custodial parents. Visitation can range from several weeks and months of unsupervised time with your children to supervised visits every other weekend.
Cases in which child custody law would deny visitation rights often include non-custodial parents who have abused the child or noncustodial parents severely suffering from a mental illness that could negatively impact the child. Non-custodial parents who are incarcerated or who have a prison record are not automatically denied visitation rights, however.
In addition to physical and legal custody and visitation, child custody law also determines whether a custodial parent can move far away and take the child with him or her. Child custody laws in many jurisdictions require custodial parents to notify and gain the agreement of the non-custodial parent before he or she can relocate to another place far way. Part of a relocation agreement could include increased visitation or decision-making rights for the non-custodial parent.
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