Divorce, which is often a complex and difficult process, is complicated even further by child custody concerns. Here, the experienced legal professionals at Protokowicz & Rodier touch on four common concerns regarding child custody.
Maternal vs. Paternal Custody
Question: As a father, am I less likely to be granted custody of my child?
Answer: There is a misconception that judges favor mothers over fathers in custody battles. In practice, this is certainly not the case. Judges in custody battles have one obligation: to do what is in the best interest of the child.
Historically, specific states had a “tender years” doctrine which indicated that children in their “tender years” –typically under the age of five—needed to be with their mother. It was this type of doctrine which fueled the misconception of preferential treatment for mothers. Today, however, this doctrine has been replaced by the “best interests of the child” doctrine as many courts have ruled that the “tender years” doctrine violates the equal protection clause of the constitution. As such, both fathers and mother have equal rights to apply for, and be granted, custody of their child, regardless of the stereotyped gender roles.
Question: Will a judge only award custody to one parent with the other parent being given visitation rights?
Answer: Not necessarily. While what you have described is one possible custody arrangement, there are various formats that custody can take. Frequently, when both parents are fit and able to care for a child, and with regard to legal custody if the parties can communicate and make shared decisions on matters involving the child’s medical, religious and educational upbringing, courts will award joint custody. Joint custody can fall into three categories:
- Joint Legal Custody- In this situation, both parents share legal decision making responsibilities for situations pertaining to medical, religious or education decisions for the child.
- Joint Physical Custody- Here, the child will spend time with each parent. The exact split of time will, usually, be determined by the courts.
- Combination of Joint Physical and Legal Custody- This option is a blend of the two aforementioned possibilities, in which both parents share decision making responsibilities and physical care responsibilities for the child.
Question: Will the sexual orientation of myself or my partner effect our custody or visitation arrangements?
Answer: It should not, and, in many states, sexual orientation legally cannot prevent a parent from being awarded either custody or visitation of their child. If you feel that this has already happened to you, or that your sexual orientation could potentially impact your case, it is essential that you discuss your concerns with an experienced attorney to ensure that your case is tried in a fair and unbiased situation.
Question: How is visitation time determined?
Answer: When one parent is awarded physical custody and the other reasonable visitation, the visitation schedule is either established by an agreement of the parties (typically a parenting plan or consent agreement) or, in the absence of or the inability of the parties to come up with an agreed upon schedule, is determined by the Court. The Judge would include the terms of visitation as part of his or her order, following his or her opportunity to hear evidence and argument during a hearing or trial on the issue of custody and visitation. In amicable custody proceedings, when the parties are able to reach agreements with regard to the schedule of custody and visitation, judges prefer to leave the determination of reasonable visitation time to the discretion of both parents. Many times, the courts will ask that parents create a parenting and visitation plan which sets the schedule of visitation as well as outlines which parent holds decision-making ability for the child in various situations. Parenting plans not only ensure that the time is split equitably, but also serve as a good reference if problems, regarding miss or lacking visitation, arise.
A judge’s decision of who should be awarded custody boils down to what is in the best interest of the child(ren). This is based, among other things, on each parent’s ability to provide a stable home for the child, their physical and mental health, their emotional bond with the children, the child’s established living pattern, and in some situations, the child’s preference. If you are in the midst of divorce or child custody proceedings, and require legal counsel, contact the experienced attorneys at Protokowicz & Rodier online or by phone at 410.803.1839