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Child custody determinations are made by state courts, and each state will
generally apply its own law in making a child-custody determination. Often parents reside
in different states, or in different states from the child or children. In that case, the
courts of the state where the child has resided for more than six months will generally
have exclusive jurisdiction to make a custody determination, and a child custody dispute
brought in any other state can usually be required to be dismissed. However, a state which
have previously made a child-custody determination will normally have continuing
jurisdiction over the parties' children, as long as one of the parties still lives in that
state. Despite frequent disputes about jurisdictional matters, the substantive law
of child custody is surprisingly uniform from state to state. That is so because all
states follow the "best interests of the child" standard.
The essence of a custody dispute is that, when divorcing or unmarried
parents are unable to agree on arrangements for the custody of their child, the court must
make a decision for them. In most cases, parents who cannot settle their differences
cannot be counted on to make joint decisions regarding their children's welfare.
Accordingly, there needs to be one parent who will have exclusive authority to make key
(medical care, schooling, etc.) decisions effecting the welfare of the children in the
event that they need to be made, even if the other parent would oppose or wish to
frustrate such decisions. That is called "legal custody" - the right to make
legally binding decisions affecting the child. Courts are also frequently concerned with
"physical custody" - where the child will live. Generally, in custody
determinations, physical and legal custody will be granted to the same parent.
If the parties are able to cooperate with regard to their children's
upbringing, then they can usually make an agreement regarding custody. The private
resolution of disputes over custody (and all other matters in a matrimonial dispute) and
visitation is strongly favored not only as a matter of public policy but also because
there simply are not enough judicial resources to go around. Such an agreement may provide
for sole, shared or joint physical or legal custody, or just about any combination. In
fact, if the parties agree, the number of possible variations in custody arrangements is
limited solely by the imaginations of their attorneys. As noted above, however, joint or
shared custody arrangements are generally inappropriate where the level of discord between
the parties renders joint decision-making impractical. For that reason, most courts will
not award joint custody in a contested-custody dispute. In a child custody dispute, there
are rarely winners, frequently everyone is a loser, and the biggest losers are often the
children.
Most matrimonial disputes are settled before trial. Agreements made between two parties
with respect to child custody, visitation and support, whether in a separation agreement
or a stipulation on the record in court, are generally binding on them. However, most
states take the position that such agreements are not binding on the courts if the court
finds them not to be in the child's best interest. Accordingly, despite an apparently
binding agreement for joint custody or for other arrangements, modification is possible in
some cases when the agreement no longer is in the child's best interest. Modification of
custody is discussed below.
In almost all cases, no single factor will be dispositive, and the court
will consider every factor and do what is, in all respects, in the best interest of the
child. This determination is necessarily very fact-dependent. The court will consider such
factors as the age and health of each party, but it will generally give great weight to
the child's relationship with each party, which party has demonstrated greater
responsibility toward the child, and who the child's closer "psychological"
parent may be. Such factors as who takes the children to school, attends teacher
conferences, arranges play dates, takes the children to doctor visits, etc. are likely to
be persuasive. The fact that one party is frequently absent from home, or has an
unpredictable travel schedule, may make a difference. Courts consider such factors as:
keeping siblings together, strength of bonding, continuing the present arrangement when
the child is happy and well-adjusted, moral character, emotional stability, duration and
depth of desire for custody, ability to provide personal rather than surrogate care, any
impairment to function as a parent, reasons for past relinquishment, religious
compatibility, kinship and financial condition. But no one factor is dispositive. As noted
above, the court will weigh all factors, including the child's preference, and determine
what will best serve the child's interest.
In some cases the court will appoint a guardian
or attorney for the children, to make sure that their interests are represented. The
appointee will interview the children at length, and generally interview their parents as
well, and make a report to the court on his or her views regarding custody.
In yet other cases, a psychiatrist or psychologist will be appointed by
the court to give a report and/or make a recommendation. The mental-health professional
will generally have the opportunity to devote far more time to the evaluation than the
court could. In some cases, each side will retain his or her own experts.
Disputed custody contests can be extremely expensive. It is not unheard of
for each side to spend large amounts of money on counsel fees and experts. Woody Allen and
Mia Farrow spent over $2,000,000 between them.
The presumption that the mother of a child should be granted custody
automatically has long since gone by the legal wayside, and most states now provide either
by statute or common law that neither parent has a prima facie right to custody. However,
although no longer part of the law, it is a concept that seems to be hard to kill,
especially, at least in my experience, in cases being decided by older male judges.
Similarly, older male judges may be prejudiced against mothers who are perceived to be
libertines. Parents seeking custody need to be mindful of the possible prejudices of
judges in such matters. While the vast majority of fathers do not contest custody, in
those cases that are contested and litigated through trial, fathers win more than half of
the time.
The wishes of a child are never dispositive by themselves. Courts are
"wise" to the possibilities for manipulation of children, or that children will
not know (or make decisions based on) what is best for them. For this reason, the wishes
of a young child (under 10-11 or so) will be accorded very little weight in most custody
determinations. The wishes of a young teenager (say 12-14) will generally be evaluated
along with a deeper exploration by the court of why the child holds the particular
preference, and will be accorded considerable weight if rational and apparently not the
product of a "bribe" - but again, those wishes will not be dispositive if the
court finds them not to be in the child's best interest. The wishes of an
almost-emancipated child (14+) are likely to be accorded great weight for a number or
reasons, not the least of which is the fact that a child of that age is capable of picking
himself up and going wherever he wants.
While the "best interest" standard is always applied to any
custody dispute, a different issue comes into play with a custody modification, as opposed
to an original custody determination. In a modification, the court is forced to weigh the
benefit, if any, of the proposed change against the disruption caused by a change in
custody. Studies have shown that changes in custody are extremely disturbing to children
and, for that reason, courts are reluctant to make changes unless the proposed new
arrangements are head-and-shoulders better than the old ones. So a parent seeking a change
in custody faces the additional hurdle that an apparently stable and functional custody
arrangement, even if it would not have been the best decision originally, will be left
intact, rather than disrupt the child's stability.
Matrimonial attorneys frequently meet with parents seeking a modification
of custody based on the non-custodial parent's frustration with visitation or other
arrangements, or sometimes because of the non-custodial parent's disapproval of the
custodial parent's lifestyle, parenting style, friends, paramoursor living arrangements.
Rarely do these matters rise to the level that would justify a change in custody (at least
in the mind of a court). However, as noted above, all such determinations depend on facts
and the court's perception of them. That perception may be very different from the
perception of the angry, frustrated non-custodial parent.
In today's mobile society, relocation of the custodial parent to a remote
state (or even foreign country) is a fairly common occurrence. Many non-custodial parents
live in abject fear that their exes will depart with the kids for parts unknown, and many
custodial parents feel they need to make a clean break with their exes or to move to a
place where their employment prospects will be brighter. There are no good answers. The
national trend is tending toward permitting more freedom in relocation. Georgia recognizes
the right to travel, and is reluctant to place limitations on relocation. However,
individual judges will evaluate closely contemplated moves, especially where it will
drastically effect the child's relationship with the other parent and other family
members. Georgia requires custodial parents to give 30 days' notice to all persons
having custodial or visitation rights with the children prior to the move. This
allows the other parties to bring an action to modify custody, visitation, and child
support to take account of the move.
Yes. Child custody disputes are complex and often depend on factors that a
layman would not consider. Moreover, the parent's closeness to the subject matter makes an
objective presentation of evidence nearly impossible. If you cannot afford a lawyer, often
there are resources available to you at state expense. Check with your local Legal
Services office, or the county clerk
Because the law of child custody varies from state to state, a person who
may have valuable rights affected by such laws should consult with an attorney who
specializes in such matters. The foregoing should not be construed as legal advice, which
can only be given by an attorney who is admitted to practice in your state, to whom you
pay a fee, and who in return undertakes to protect your rights and to explain your
responsibilities.
