Divorce or separation from a spouse or partner, especially when you have children, is very difficult because every parent wants to physically be there for their child and to raise their children. In divorce proceedings, custody is usually resolved by the assigned judge. However, parenting circumstances may change, and you might want a modification of the custody order. In this case, you need a child custody lawyer.
A child custody lawyer will help you modify a custody order, visitation schedule, or parenting plan, or oppose any request for such change, help enforce a visitation agreement when the other parent violates it; help other relatives such as grandparents acquire visitation rights; and help protect the rights of the non-adopting, non-biological parent in same sex couples.
Physical and legal custody
There are two aspects of custody: physical and legal. Physical custody refers to the custody exercised by the parent who spends majority of the time with the children. The parent with physical custody over the children is the parent who lives with the children most of the time. Legal custody refers to the right to make important decisions for the child.
Courts can grant either joint or sole custody in both physical or legal custody. Thus, there are four types of custody arrangements: sole physical custody, joint physical custody, sole legal custody, and joint legal custody.
Joint legal custody is the norm, because courts would like both parents to exercise decisional responsibility over their children. Sole legal custody grants only one parent the responsibility for making major decisions for the child. Although it is not typical, it is also not rare. Sole legal custody is generally granted when one parent has a history of domestic violence, physical abuse, untreated mental illness or substance abuse.
In the same way, sole physical custody is not the norm, but granted in cases of domestic violence, mental illness, or substance abuse. Sole physical custody does not mean the other parent will not be able to see the children. The non-custodial parent may be given visitation rights which could include overnight visits. Joint physical custody, on the other hand, is the norm granted during divorce or separation to enable both parents to spend an almost equal amount of time with their children.
Given the four custody arrangements, the court may grant sole physical custody to one parent but joint legal custody to both parents. For example, when parents have separated and one parent is in military and has been deployed abroad, the parent in the US may be granted sole physical custody, but joint legal custody is still exercised by both parents. This means that, even if the child lives primarily with the parent in the US, important decisions regarding the child’s education, healthcare, extracurricular activities, and religion rests on both parents.
The same situation may apply when two parents live in separate states. For example, J Lo, who has moved to California from Florida, may be granted sole physical custody over the children, but joint legal custody (which means the power to decide on important decisions regarding the children) will still rest on both parents, J Lo and Marc Anthony.
In the case of the military parent, when the military parent returns with plans to permanently stay in the US, the military parent may request for a change in the custody order, given the change in parental circumstances. When there is a change in parental circumstances, a child custody lawyer can help you modify a custody order.
Best interests of the child
The court, in determining custody, will always consider the best interests of the child. In determining what is the best interest of the child, several factors are considered, such as the voluntary agreement between the parents, the child care arrangements if the child is to live with a parent, the parent who was primarily taking care of the children prior to the separation or divorce, any history of drugs and alcohol abuse of either parent, the mental health of the parents, the child’s preference, where the child’s siblings will live, educational opportunities, the home environment, and finances of each parent. More information on the best interests of the child and information about what is considered an unfit parent can be found here.
The custody hearing
In a custody case, the court appoints an attorney for a child. This attorney will talk to the child in private and tell the judge what the child wishes. A case worker may also be assigned to visit the homes of the parents, to speak to the other people who live in the home, such as the step-parent and other siblings, and to prepare a report about the parents asking for custody. In the hearing, each party will also present their own witnesses who can support their case. The judge may also speak to the child privately in his office without the presence of the parents. After taking into consideration all these, the judge will make a custody order based on the best interests of the child.
Previously, it was a case of who was an unfit parent. Recent jurisprudence recognizes that both parents may be fit. The one awarded custody is generally the more fit parent over the less fit parent, given the factors that determine the best interests of the child. A child custody lawyer will help you prove you are the more fit parent in the case.
A custody order is not final and may still be modified. Sometimes, parents may relocate due to remarriage, job changes, or financial opportunities, and need a modification of the custody order. There could be loss of employment, financial hardships, or a medical issue might arise requiring a change in the custody order. A partner in a same-sex couple who did not adopt the child of his other partner is not considered a parent and will not be given any rights once they separate, even if such parent would be happy to help financially. However, a child custody lawyer will be able to help this non-parent have some access to the child due to the relationship already forged with the child.
Child custody can be contentious and emotional. In these cases, you need a skilled child custody lawyer beside you who can give you the best results in custody, visitation, and child support. A good child custody lawyer can advocate for more than the minimum level of child support by asking for assistance in payment for private tuition fees, extracurricular activities, and other child caring expenses. The child custody lawyer can help you get the maximum amount of parenting time you can have with your children.
Should you have issues in family or child custody and need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.