THE CUSTODY
BATTLE
Unfortunately, a
child custody battle is exactly what it will turn into. Before you
reach the point of court intervention to decide custody think long
and hard. A child custody battle puts the child right smack in the
middle of your battle. Why are you fighting for custody? Are you
fighting FOR custody or fighting so that your ex-spouse DOESN'T HAVE
custody? Is it in the best interest of the child? If you've
determined that it's the right thing to do for the children to go
forward, what can you expect when the court
intervenes?
"The court will take
into consideration the best interest of the child when making the
decision who gets child custody. "If the court feels that neither
parent is acting in the best interest of the child a guardian ad
litem may be appointed to help in making decisions on the behalf of
the child. "Depending on the age of the child, their wishes may or
may not be taken into consideration. Some states strongly take into
consideration the wishes of the child depending on their age, some
states do not consider the child's wishes at all, without regard to
age.
"Traditionally, the
judicial system leans towards deciding in favor of the mother in
custody cases. However, with more women pursuing full time careers
this trend may be changing. It is no longer assumed that the mother
is the primary caregiver. "Unless the situation is so obvious that
one parent should have custodial rights over the other (such as in
drug abuse or physical abuse) a court ordered independent evaluation
will probably be ordered. The evaluation is usually done by a court
appointed mental health professional such as a psychologist or a
social worker.
A thorough evaluation
can include the following: interviews with all the parties involved
(individually and possibly with the parent and child together);
psychological testing of both parents and the child; review of
school records and or conversations with teachers; review of medical
records and developmental history; review of legal records, such as
the papers filed regarding the divorce, any possible domestic
disputes and any criminal records of either party involved. Be
prepared for the evaluation to take at least four to six weeks if
not longer. Be prepared for a time consuming and costly
battle.
JACK I. HYATT
Family Law Attorney
Maryland Custody
Lawyer
Attorney Credentials:
Former Assistant State's Attorney
Admitted To Practice Before:
The U.S.
Supreme Court
All Maryland
Courts
Federal District Court
Member:
Maryland State Bar
Association
Baltimore City Bar
Association
Baltimore County Bar
Association
University of
Baltimore
A.A. B.S.
J.D.
Honorable Discharge U.S.
Army
Click To E-mail For Answers To
Your Questions
Types of Custody
Learn the difference between legal custody, physical custody,
sole custody, and joint custody.
Legal Custody
Legal custody of a child means having the right and the
obligation to make decisions about a child's upbringing. A parent
with legal custody can make decisions about schooling, religion, and
medical care, for example. In many states, courts regularly award
joint legal custody, which means that the decision making is shared
by both parents.
If you share joint legal custody with the other parent and you
exclude him or her from the decision-making process, your ex can
take you back to court and ask the judge to enforce the custody
agreement. You won't get fined or go to jail, but it will probably
be embarrassing and cause more friction between the two of you --
which may harm the children. What's more, if you're represented by
an attorney, it's sure to be expensive.
If you think you have circumstances that make it impossible to
share joint legal custody (the other parent won't communicate with
you about important matters or is abusive), you can go to court and
ask for a change in custody so that you have sole legal custody.
But, in many states, you will have to overcome a presumption that
joint legal custody is preferable.
Physical Custody
Physical custody means that a parent has the right to have a
child live with him or her. Some states will award joint physical
custody to both parents when the child spends significant amounts of
time with both parents. Where the child lives primarily with one
parent and has visitation with the other, generally the parent with
whom the child primarily lives will have sole physical custody, with
visitation to the other parent. Joint physical custody works best if
parents live relatively near to each other, as it lessens the stress
on children and allows them to maintain a somewhat normal routine.
Sole Custody
How can I keep custody of my daughter when her father has a
criminal record?
One parent can have either sole legal custody or sole physical
custody of a child. In most states, courts are moving away from
awarding sole custody to one parent and toward enlarging the role a
divorced father plays in his children's lives. Even where courts do
award sole physical custody , the parties often still share joint
legal custody, and the noncustodial parent enjoys a generous
visitation schedule. In that situation, the parents would make joint
decisions about the child's upbringing, but one parent would be
deemed the primary physical caretaker, while the other parent would
have visitation rights.
Courts generally won't hesitate to award sole physical custody to
one parent if the other parent is deemed unfit -- for example,
because of alcohol or drug dependency, a new partner who is unfit,
or charges of child abuse or neglect.
It's understandable that there may be animosity between you and
your ex-spouse. But it's best not to seek sole custody unless the
other parent causes direct harm to the children. Even then, courts
may simply allow supervised visitation, while still ordering joint
legal custody.
Joint Custody
Parents who don't live together have joint custody (also called
shared custody) when they share the decision-making responsibilities
for, and/or physical control and custody of, their children. Joint
custody can exist if the parents are divorced, separated, or no
longer cohabiting, or even if they never lived together. Joint
custody may be:
joint legal custody
joint physical custody (where the children spend a significant
portion of time with each parent),
or
joint legal and physical custody. It is common for couples who
share physical custody to also share legal custody, but not
necessarily the other way around.
When parents share joint custody, usually they work out a
schedule according to their work requirements and housing
arrangements and the children's needs. If the parents cannot agree
on a schedule, the court will impose an arrangement. A common
pattern is for children to split weeks between each parent's house
or apartment. Other joint physical custody arrangements include:
alternating months, years, or six-month periods, or spending
weekends and holidays with one parent, while spending weekdays with
the other.
Joint custody has the advantages of assuring the children
continuing contact and involvement with both parents. And it
alleviates some of the burdens of parenting for each parent. There
are, of course, disadvantages:
Children must be shuttled around.
Parental noncooperation or ill will can have seriously negative
effects on children. Maintaining two homes for the children can be
expensive.
If you do have a joint custody arrangement, maintain detailed and
organized financial records of your expenses. Keep receipts for
groceries, school and after-school activities, clothing, and medical
care. At some point your ex may claim she or he has spent more money
on the kids than you have, and a judge will appreciate your
Bird's Nest Custody
Bird's nest custody is a joint custody arrangement where the
children remain in the family home and the parents take turns moving
in and out, spending their out time in separate housing of their
own.
The terms "sole custody" and "joint custody" are somewhat
generic.
They represent categories of custody, but custody itself is best
understood as a continuum, as unique as the parents who divorce.
Imagine a continuum with parents who are completely cooperative
at one end and a single parent raising children alone, with no
involvement on the part of the other parent, at its other end. At
the cooperative extreme, parents may live next door to each other
and the children may go back and forth interchangeably. At the
other, the non-custodial parent may have died or disappeared. While
the former example is more usual than the latter, your family
probably falls somewhere in between
Types of Custody
In general, legal custody refers to whether one or both of the
parents make legal decisions regarding the child - such as
educational, medical or religious choices. A court can give parents
joint legal custody, in which case they make such decisions
together, or give one parent sole legal custody, in which case that
parent makes decisions alone, although the other still has a right
to be kept fully informed. Physical custody refers to the child's
living arrangements. A court can give both parents physical custody,
in which event they share parenting time on an approximately equal
basis, or it can give one parent primary physical custody and the
other more limited parenting time.
It is possible for a court to award joint legal and joint
physical custody to the parents. However, a court can also award
joint legal custody, but give one parent primary physical custody.
On rare occasions (such as when one parent is mentally impaired but
otherwise a positive influence), a court may even award sole legal
custody to one parent, with a shared physical custody arrangement.
Factors to Consider
What's best for your children depends on many factors.
You and your spouse would be good candidates for joint legal
custody if: Both of you are good parents;
Each of you trusts the other to be a good parent;
Each of you has the maturity to set aside the personal
differences that gave rise to the divorce because your primary focus
is on doing what's best for your children;
and There is no history within your relationship of domestic
violence or other control issues that would make joint
decision-making difficult or impossible. The very worst place for
children to be is at the center of ongoing conflict between their
parents.
Parents Working Together
Regardless of whether or not joint custody is appropriate for
your case, please understand that parents can and should attempt to
work together in most cases, even when one parent has sole custody.
There are unusual situations in which the other parent is so harmful
that your duty, as a good parent, is to protect your children from
him or her. Fortunately, this is rare. In the vast majority of
cases, children of divorce will do best when both parents take a
positive and active role, and each encourages an ongoing, meaningful
relationship with the other.
The Importance of Consulting an Attorney
There are many ways in which custody issues impact divorce.
To explore the various types of custody in adequate detail and
evaluate which may be best for your children, consult with a
competent domestic relations attorney.
Please keep in mind that custody should be done right the first
time. If you enter into a custody agreement that is inappropriate,
or if the court is presented with inadequate information upon which
to enter orders, the impact on your children can be negative. Even
so, once custody orders are entered, they can be extremely
difficult, and in some cases impossible, to modify.
This is true regardless of whether those orders were the result
of negotiated settlement or litigation.
You could end up in court (or back in court if the case was
initially decided by a judge) attempting to re-litigate issues you
thought were settled. Worse yet, you might be unable to convince the
court to change custody and visitation orders that harm your
children.
Therefore, it is essential to focus from the outset on obtaining
custody orders that best serve their needs.
Children are Priceless
Attorneys are expensive but children are priceless.
Even if you and your spouse are in agreement about custody and
visitation, I recommend you consult with a competent domestic
relations attorney before making any important decisions.
Temporary Custody
- "De facto" (means "in fact") custody refers to who actually has
custody of the child at this time. This can be different from "court
ordered custody". In order to formalize custody before you begin
litigation, you will need to file for temporary custody. Temporary
custody will be based on the "best interests" of the child standard.
It is not an "initial" award of custody. Instead it is temporary
custody while you wait for the court to hold a hearing.
Sole Custody
- Custody is made up of: legal custody and physical custody. A
person with legal custody has the right to make long range plans and
decisions for the education, religious training, discipline,
non-emergency medical care and other matters of major significance
concerning the child's welfare. A person with physical custody has
the child living primarily with them and they have the right to make
decisions as to the child's everyday needs. Sole Custody is when
both legal and physical custody are given to one parent. The child
has only one primary residence.
Split Custody
- Split custody is easiest to describe in a situation where there
are two children and each parent obtains full physical custody over
one child. Some of the considerations that may bring about this
result are age of the children and child preference.
Joint Custody
- Joint Custody is actually broken down into three categories:
Joint Legal, Shared Physical, and Combination.
Joint Legal custody is where the parents share care and control
of the upbringing of the child, but the child has only one primary
residence.
In Shared Physical Custody the child has two residences, spending
at least 35% of their time with the other parent.
Additionally, you can make your own special joint custody
agreement that is any combination of Shared Physical and Joint Legal
Custody. One example of this is when there is one residence for the
child and the parents live with the child there on a rotating basis.
The court looks very closely at Joint Custody agreements. The
most important factor to Joint Legal Custody to Shared Physical
Custody is the ability of the parents to talk about and reach joint
decisions that affect the child's welfare. If you are constantly
fighting over what religion or what school, the court may strike
down your agreement.
Other factors include:
willingness to share custody; fitness;
child's relationships with parents;
child's preference;
ability to stabilize child's school and social life;
closeness to parent's homes (primarily a factor during the school
year) ;
employment considerations (e.g. long hours, extensive travel,
etc.);
age and number of children;
financial status;
benefit to parent.
Additionally, the sincerity of the parties involved is important.
The court will want to make sure that joint custody isn't being
traded for concessions on other points. Another consideration is
whether the grant of joint custody will affect any assistance
programs.
Currently, Welfare and Medical Assistance are affected based on
the award of Joint Legal Custody. Be sure to check with your contact
at any social service agencies before entering into an agreement or
you may be jeopardizing your benefits. This list is not meant to be
complete and the court will hear anything that they believe to be
relevant.
Child Custody Concerns in Maryland
Whether handling a stipulated stepparent adoption or an
emotionally-charged child custody dispute, the family law attorneys
at Stearns-Montgomery & Associates provide all of our clients
with caring and supportive legal advocacy along with experienced
legal representation and results.
Our firm is a smaller law firm by choice: we know our clients by
name and personally manage every aspect of their case, providing
outstanding representative in a cost-effective manner. When deciding
issues regarding child custody, courts in Georgia will consider many
factors including:
Best interests of the child
Suitability of each parent as custodian Psychological, emotional,
and developmental needs of the child Ability of the parents to
communicate Prior and continuing care that the parents have given
the child Wishes of the child Safety of the child
Custodial agreements of the parents
History of domestic abuse
We zealously represent the best interests of mothers, fathers,
grandparents and other interested parties in custody controversies
without putting children in the middle of the dispute. We are
committed to providing the most effective level of service to each
of our valued clients in a caring and compassionate manner. We
handle child custody issues including:
Adoption and stepparent adoptions
Child custody, legal custody, physical custody, temporary custody
and visitation Child support, child support enforcement and child
support modification Guardian ad Litem services regarding child
custody and modification Grandparent custody, grandparent visitation
and grandparent rights Interstate jurisdictional issues-Uniform
Child Custody Jurisdiction Act (UCCJA). Marital settlement
agreements Mediation and settlement agreements
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