The issue of who retains custody of the children in a divorce and the amount of child support to be paid remains problematic for the courts.
At the time of the divorce, the court determines which parent has custody of the children. Custody is commonly referred to as “conservatorship.” Anyone with an interest in the child can be appointed as the conservator, but typically the parents are appointed (unless both are deceased, or their parental rights have been terminated). The goal of the court is to provide the child with a day-to-day caretaker who has the authority to make all of the decisions that affect the child.
The judge in a divorce case has the authority to make determinations regarding all of the issues affecting the children. These include custody, visitation, support, school and holiday schedules. The spouses and the children themselves can voice their opinions, but the final authority rests with the court, who must consider the best interests of the child.
SIDEBAR: “Best interests of the child” is a phrase that is frequently used in child custody matters. It is the standard used by the court to determine what arrangements are to a child’s greatest benefit.
Where one parent has primary control and care over the child, that parent is the sole managing conservator or primary custodian. When both parents have equal control and care over their children pursuant to the court’s order, they are joint managing conservators or joint custodians.
The typical parental rights that the parents had when they were married are converted into their rights as the child’s conservator or custodian. The rights are specified in the court order that appoints one or both parents as conservator of the child.
Determination of conservatorship
The judge’s decision to appoint a conservator is based on the “best interests of the child.” However, the court also takes into consideration:
- the child’s ability to have frequent and continuing contact with her parents;
- the availability of a safe, stable, and nonviolent environment for the child; and
- the goal of encouraging parents to share in the rights and duties of raising their child after a divorce.
Best interests of the child
Since the court is charged with considering the best interest of the child in all its decisions relating to possession of and access to the child, it is generally assumed that the judge is in the unenviable position of choosing the “best” parent. The court does consider the parent’s incomes, their housing situations, their personal habits, their mental stability, and the time they have available for the child. However, in deciding what is best for the child, the court examines many factors that are not related to parenting at all.
In order to determine what type of conservatorship is best for the child, the judge considers:
- the potential separation from siblings;
- the child’s preference;
- the child’s religious beliefs and habits;
- the child’s current school situation;
- the child’s access to other family members, such as grandparents;
- the access to activities in which the child is involved;
- the physical and emotional needs of the child, based on their gender;
- the child’s age;
- the emotional tie between the child and the potential custodial parent;
- the ability of the parent to provide the necessities for the child;
- the current living arrangement between the parent and child; and
- the ability of the potential custodial parent to foster a healthy relationship between the child and the other parent.
I’ve been appointed the sole managing conservator of my children. What are my rights and duties?
As the primary custodian, you have the sole right to:
- determine your child’s residence;
- consent to medical, dental, and surgical treatment, including psychiatric and psychological treatment;
- make decisions concerning your child’s education;
- receive child support payments and spend the money for your child’s benefit; and
- make legal decisions concerning your child.
TIP: The custodial parent can also consent to marriage and enlistment in the military.
Is a mother always awarded custody of very young children?
No. If it is not in the child’s best interest to be with their mother, the court will not appoint the mother as conservator, regardless of the child’s age. However, all other things being equal, young children are typically placed in their mother’s care.
SIDEBAR: The judge is prohibited from deciding custody on the basis of sex alone. The court cannot discriminate against the father simply because he is a man. However, the judge can make a finding that the child’s needs are best managed by the mother. In other words, the gender of the parent can be factored in; it just cannot be the only consideration.
My ex-husband remarried and I am still single. Will he be awarded custody of the children because he can offer a two-parent home?
No. Laws generally prohibit courts from factoring in either parent’s marital status.
My ex-husband is a homosexual. Isn’t he prohibited from being appointed our son’s primary custodian?
No. The law does not prohibit homosexual parents from having custody of their children. However, your husband’s sexual preference may be taken into consideration. Whether it weighs against him will depend on the judge.
TIP: In more conservative states, judges may tend to disfavor placing the child in the custody of a homosexual parent. The court may find that the parent’s sexual preference has a harmful impact on the child.
If my children live with me, they will attend church and Sunday school regularly, participate in the church choir and go on a mission trip to Mexico. Shouldn’t the court place the children with me because they will be exposed to religion?
No. The court may consider your faith in deciding which parents gets custody, but the judge is prohibited from favoring one religion over another, or favoring one parent with religious exposure to one with no religious exposure. The court may find, however, that the church activities are in the children’s best interests.
My ex-wife is very bitter since our divorce and insists on running me down constantly in front of the children. Can the judge consider this when deciding custody of the children?
Yes. Since the best interests of the children are paramount, the court will not look favorably on placing them in a negative atmosphere. Additionally, if your wife is attempting to interfere or undermine your ability to parent the children, the judge can find that their best interests are not served with her as the primary custodian.
Can the judge change custody from one parent to another?
Yes. The court always has the authority to modify or change any orders that affect the children. If it is in their best interests to live with another parent, the court will terminate the current custodian and appoint a new one.
TIP: Judges generally work from the assumption that modifying custody is not in a child’s best interest because it is counterproductive to maintaining a stable and safe environment for the child. In other words, a parent’s efforts to switch custodians must be supported by compelling new facts.
Where one parent has been appointed sole managing conservator or primary custodian, the other parent is allowed to visit with the child on a regular and periodic basis. However, it is not the parent that has the right to visitation; it is the child. It is presumed that allowing a child access to both parents is always in his or her best interest. Therefore, prohibiting or decreasing visitation requires a finding that the child’s best interests are no longer being served under the current visitation schedule.
With regard to visitation, the judge can decide:
- the place of visitation;
- the time of the visit;
- the duration of the visit;
- the frequency of the visit;
- the persons permitted to visit; and
- prohibitions during the visit.
Standard visitation rights
Because divorce and child custody issues are so common, most states have enacted laws that set out a standard visitation schedule. Unless the circumstances warrant a change, the judge will enter a standard custody order that sets out the visitation schedule to which the parents must adhere.
Can visitation between a parent and child be completely denied?
Yes. If visitation with a parent will endanger the child, physically or emotionally, the court can prohibit visitation entirely. However, the court must find that the facts contributing to the adverse impact on the child are an extraordinary circumstance
TIP: If at all possible, before denying visitation the court has a duty to attempt other means of visitation, such as supervised visits.
As a result of my re-marriage, my son now has a half-brother. Is that a consideration in setting up a visitation schedule?
Yes. Courts favor visitation that fosters a relationship between siblings.
My ex-husband chose to work in a different state. Will he get longer visitation with the children as a result of his living far away?
Yes. The court takes geographic proximity of the children and a parent into consideration. Since visits are necessarily less frequent due to the distance involved, the court has the discretion to order longer visitation time periods. For instance, the children’s visit during summer vacation may be extended from 2 weeks to 6 weeks, since their father is unable to see them much during the school year.
My ex-wife lives 8 hours away and she wants me to drive the children to her home every weekend. Will the court approve that visitation schedule?
No. If the court orders weekend visits, the schedule might be modified to require the two of you to meet halfway. Alternatively, the court may order visits every other weekend, or require your ex-wife to pay for your gas. The judge will do whatever is in the best interests of the children.
EXAMPLE: It is not in the best interests of the children to require them to visit with their father who lives 2 hours away every Wednesday after school. The visits will have a negative impact on their schoolwork.
My ex-husband refuses to make support payments on time. Shouldn’t his visitation with the children be curtailed?
No. The court cannot use visitation as a “stick” to punish a parent. Visitation is a benefit to the child, not the parent, and it will only be curtailed if it is in the best interests of the children.
SIDEBAR: The judge can and will decrease or terminate visitation when the parent’s behavior becomes so outrageous that the physical, mental, economic and/or social well-being of a child is affected. For example, a wife who yells and argues with her ex-husband when he picks up the children after weekend visits with their mother, locks the door and attempts to block him from entering the house and taking the children, is acting in outrageous manner.
My ex-husband’s girlfriend lives with him. Should the children get to stay at his house overnight?
Yes. The court cannot base a visitation decision on the fact that your ex-husband’s girlfriend is in the house. However, if her presence (and the resulting sexual relationship with your ex-husband) affects the children’s emotional well-being, overnight visits may be prohibited. Additionally, the court is within its rights to limit visitation if it finds that the children are too young, and it is not in their best interests to be exposed to their father’s sexual relationship with his girlfriend.
SIDEBAR: A parent’s illegal drug use always has an adverse impact on the visiting child.
Can the court order visitation between my daughter and her mother, who is in prison?
Yes. Incarceration alone does not warrant denying visitation entirely. It’s presumed that it is in your daughter’s best interest to see her mother.
SIDEBAR: Parents convicted of a felony relating to sexual abuse or assault can be denied visitation because the crime constitutes an extraordinary circumstance.
My 11-year-old son wants longer visitation periods with his father. Is his preference going to mean the court will change the visitation schedule?
No. The court may consider your son’s wishes; but children typically do not base their preferences on what is in their best interests. By itself, your son’s preference is not enough to change the visitation schedule. By the same token, the child who prefers not to visit a parent will not be allowed to “skip” visitation.
Modification Of Child Custody Orders
Courts are loath to disrupt the status of a child’s custody situation. Laws typically prohibit any modification within a year of the divorce unless the child’s health is in danger or the custodial parent has let the child live with the other parent for most of the year.
Custody orders can be modified if there is a substantial change in the life of the parents or the child. A substantial change of circumstance means that new facts have arisen that would have changed the court’s previous custody decision. Additionally, laws often allow children of a certain age to choose where they want to live (which, in essence, determines the custodian).
My son’s grades have dropped ever since he has lived with my ex-wife. Can I get custody changed?
Not on that basis alone. You must be able to show the court some facts that would have persuaded the judge to place the child with you, if they existed at the time of your divorce.
My former husband has started drinking again. Will the judge let the children come live with me?
Yes. Based on changes in your husband’s lifestyle, the court may decide that it is in the best interest of the children to have you appointed as the new primary custodian. Your husband’s excessive drinking poses a physical and emotional danger to the children.
My ex-wife has not established regular mealtimes for my son, he is constantly ill, was injured on the playground while he was unsupervised, and he is left with teen-aged baby sitters routinely during the week. Can I get primary custody?
Yes. While each fact alone may not be enough to warrant a modification in the custody order, as a whole the situation equates to a change of circumstance.
SIDEBAR: Although modifications require a change in circumstance, sometimes the usual living arrangement is so inadequate and harmful to the child, he or she may be placed with the other parent.
My ex-husband spanks our daughter. Is this enough to allow me to get primary custody?
No. Unless your child is in physical danger, your husband’s disciplinary methods alone are not enough for a modification. However, spankings or any other type of discipline that leave a permanent injury on a child, such as bruising, rise to the level of “physical danger.”
I was arrested for drunk driving. Am I going to lose custody of my children?
No. A parent does not automatically lose custody if he or she is arrested or even convicted of a crime. To obtain a modification, your ex-spouse must prove your children’s physical and emotional health has been adversely impacted or that they are in danger. For example, if they were in the car with you when you were driving under the influence and if there is evidence that this was not an isolated occurrence, the judge may modify custody.
The court modified our custody order and now my ex-husband is the primary custodian of our daughter. Does this mean I have been found to be an unfit mother?
No. The court does not necessarily make a finding that the parent who did not receive custody, or even loses custody, is unfit. The court’s determination is based on the best interests of the child. The facts may show you in a bad light; however there has been no official adjudication that you are an unfit mother.
My husband has adopted a religion that does not celebrate birthdays or holidays. Can I change custody so that I am the primary custodian?
No. You may not agree with your husband’s religious practices, and you may even think they are “weird,” but his new religion does not substantially change the circumstances. The children can always celebrate birthdays and holidays at your home.
My son turned 12 and wants to live with his father. Will the court abide by his wishes and modify custody?
Yes. Laws permit the court to give a preference to a child’s wishes when the child reaches a certain age, can articulate his reasons, and his best interests will be not be adversely impacted.
TIP: The child must officially contact the court in writing, notifying the judge of his preference.
I’ve sobered up, obtained a great job and just purchased a new home. On the other hand, my ex-wife, who has custody of the children, has grown depressed, reclusive and uncommunicative. Can I get custody modified?
Yes. The combination of the improvements made in your life and your ex-wife’s decline has created a substantial change in circumstances permitting the court to give you primary custody of the children.
Moving out of State
Child custody orders routinely prohibit the custodial parent from removing the child from the state. Since the move greatly affects the child’s relationship with his other parent, under some laws the court has the authority to prohibit the move.
Courts typically rely on four factors before allowing the child to be moved:
- whether the move will improve the quality of life for the child, as well as that of the custodial parent;
- evidence of the absence (versus a presence) of the desire to defeat or undermine the child’s relationship with the non-custodial parent by moving away (in other words, the custodial parent isn’t moving to another state just to get back at the other parent);
- the objections, if any, of the noncustodial parent (who may not object since his support obligation will lesson if the financial prospects of the ex-spouse improve); and
- the ability to compensate for the move with extended visitation periods.
Can the court really prevent me from moving out of state with my child if I’ve been transferred?
Yes. The court is concerned with the best interests of the child, which include an ongoing relationship with the non-custodial parent. Unless the four factors listed above are present, you may not be allowed to move with the child. You can, of course, pursue your job, if you agree to leave the child in your ex-spouse’s custody.
Enforcement Of Child Custody Orders
A party whose ex-spouse is not obeying the custody order can file a motion to enforce the order with the court, which specifically points out the provisions of the custody order that have been violated. Parents who violate the order can be held in contempt by the court.
Custody orders issued in one state are enforced in all the states under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Act facilitates enforcement when a child sent for visitation out of state is not returned to the custodial parent.
TIP: A parent with primary custody, whose child regularly goes to another state to visit the other parent, should register the custody order with that state. Call the district or county clerk’s office where you ex-spouse lives and find out the process for registering out-of-state custody orders.
Parental Abduction Of Child
Rather than use the court system to work out custody disputes, a parent may resort to abducting or kidnapping her child. By abducting the child, she is assured of never obtaining legal custody of her child.
SIDEBAR: The Parental Kidnapping Prevention Act, a federal law, prevents an abducting parent from ever obtaining legal custody in another state where the court might be unaware that the child has been kidnapped. Under the Act, the court’s order would be invalid.
Parental abduction of a child is a grave matter, and any parent who believes his child is at risk should take certain precautions, including:
- notifying local law enforcement if your ex-spouse has threatened to abduct the child;
- notifying school administrators and teachers, bus drivers, day care providers, neighbors and friends that your child may be at risk;
- keeping recent photographs of your child, along with a current physical description;
- maintaining current information on your ex-spouse: addresses and telephone numbers of friends, employers, former employers and places he or she frequents;
- knowing your ex-spouses driver’s license number and Social Security number (these are on the divorce decree); and
- teaching your child his full name, address and telephone number and showing him how to use the phone (he should be aware he can dial 911 from any pay phone or cell phone).
TIP: Contact the National Center for Missing and Exploited Children at (800) 843-5678 or www.missingkids.com for more information on how to prevent parental abduction.
TIP: If you believe your child will be taken out of the country, his passport can be entered in the passport name-check system so that he cannot be removed from the United States. Contact the U.S. Department of State Passport Services at (202) 955-0231 as soon as your child is missing if he is at risk for an international abduction.
My ex-husband refused to return our children to me after a weekend visit. Is this an abduction even though I know the children’s whereabouts?
Yes. Abduction is any act that keeps a child from her lawful custodian or a person with a legal right to visitation. It is not necessary that the child be hidden or concealed.
My husband and I are living apart and I want to take the children with me to another state. Since I am their mother and there is no custody order in place, is this an abduction?
Yes. Although you and your husband are not yet divorced, it is a crime to deny your husband access to the children. The fact that you are the mother of the children does not give you the right to obstruct their father’s legal right to see them.
I believe allowing my son to return to his mother after his weekend visit to me would put him in danger. Can I be charged with abduction if I refuse to return him?
Yes. If you believe your son is in physical danger, you should contact the local police. Depending on the situation (for example, if criminal activities are ongoing at your ex-wife’s home), the police may permit you to keep your son.
My ex-husband refuses to allow our children to visit me as required by the court. What do I do?
You must go to court and ask for a contempt hearing. If your husband refuses to follow the court’s order, he will be held in contempt and could face time in jail. Additionally, you can insist local law enforcement arrest your ex-husband for abducting the children. If your ex-husband has fled with the children, a felony warrant will be issued for his arrest.
In some states, laws allow grandparents to sue for access to a grandchild. Grandparents typically have the right to request that the court allow them access to their grandchild if:
- the parent who is the child of the grandparents is in jail;
- the grandchild’s parents are divorced or living apart;
- the grandchild was abused by one of her parents; or
- the grandchild lived with the grandparents for a period of time before the suit was filed.
The court will grant the grandparents’ request if they are eligible and access is in the best interests of the grandchild.
Where both of the parent’s rights are terminated, the grandparent generally has no right to request to see the child. Grandparents may not sue for access when the grandchild’s parents are married and living together. While the parents are married, they have the right to limit or deny grandparent’s access to the grandchildren.
SIDEBAR: Grandparents can be granted custody of a grandchild if neither parent is able to raise the child. The court factors in the grandparent’s age, health, and ability to care for a young child. If placing the child with his grandparents is in the child’s best interest, they will be awarded custody.
Can I get custody of my grandchildren?
Yes. If the children have been living with you for an extended period of time and you have had actual care, custody and control over them, the court may grant you custody.
SIDEBAR: The grandparent must file a petition requesting custody of the grandchildren with the court. If there is an ongoing divorce, the petition would be filed in the same court that is considering the divorce.
TIP: Legal custody is important because a formal custody order allows the grandparent to enroll a child in school, provide health insurance, make medical treatment decisions and apply for aid such as food stamps. Unless the grandparent has legal custody, he is unable to do any of these things.
If I get custody of my grandchildren, have my daughter’s parental rights been terminated?
No. Your daughter and the children’s father are still the legal parents of the children. However, because you have custody, the parents no longer have the right to make decisions affecting the children. You have authority over their education, medical care and treatment and any other aspects of the children’s life.
My 16-year-old daughter has had a baby. Am I legally required to care for and support the baby?
Yes. Some states have enacted “Grandparent Liability” laws, which require the parents of teenaged mothers and fathers to support their grandchild. The laws require both sets of grandparents to financially support and provide medical care to the grandchild born to the minor(s).
SIDEBAR: The grandparent’s financial responsibility to the grandchild lasts until the mother or father is 18 years old.
SIDEBAR: The court can order grandparent support at the request of the mother, father, or the state agency involved in obtaining assistance for new mother and baby.
Do I have a constitutional right to see my grandchildren?
No. The only rights you have are those given to you under state laws. All states have laws allowing for grandparent visitation, but the circumstances that permit the court to order visitation vary from state to state. For instance, you may have no rights to visitation if the grandchild’s parents are not divorced.
Can relatives (other than grandparents) petition for visitation with a child?
Yes. Laws may allow aunts, uncles and siblings access to a child in certain situations.
TIP: Where the law allows, non-relatives with close ties to a child can petition for visitation if the child’s emotional well-being would be enhanced by seeing the relative.
My daughter’s parental rights were terminated and my grandchild has been adopted. Can I get visitation with my grandchild?
No. Although your “grandparent’s rights” were not legally terminated, the effect of the parental termination means you no longer have any rights to your grandchild. Laws prohibit you from petitioning the court for visitation once a new family has adopted your grandchild.
TIP: Laws in some states allow grandparents to petition the court for visitation if a relative, as opposed to non-family member, adopts the child after parental rights were terminated.
My son and his wife refuse to let us see our grandchildren. If we sue for visitation, can we get an order from the court requiring our grandchildren to see us?
No. Since the parents of your grandchildren are married, there is no reason for a court to interfere in the parent’s decision to keep you from your grandchildren. Parents are the sole authority for what is in the “best interests” of their children where the family is intact and there are no abuse or neglect allegations.
My daughter is terminally ill. She and her children have been living with us. Can we be appointed our grandchildren’s guardians?
Yes. In situations where parents are chronically ill or dying, laws allow for “standby guardianships.” The guardianship does not take effect immediately. Instead, when your daughter dies or feels unable to care for her children, you will become the grandchildren’s guardians.
I am taking care of two small grandchildren and my financial situation will not allow me to keep them for much longer. What type of government assistance can I receive?
There are several programs that may be able to assist you as the primary caretaker of your grandchildren. You should look into:
- Social Security dependent benefits – if you have worked, your Social Security benefits may be extended to grandchildren under 18 who are living with you.
- Supplemental Security income (SSI) – SSI provides assistance to low-income children. You can apply on behalf of your grandchild.
- Medicaid – government medical care is available for your grandchildren if they qualify for SSI or have substantial medical needs.
- Temporary assistance to needy families (TANF) – this federal program allows you, your grandchild or both of you to receive benefits if you qualify. Information is available on the U.S. Department of Health & Human Services website at www.acf.hhs.gov.
TIP: For questions concerning dependent benefits, SSI and Medicaid, go to the U.S. Social Security Administration website at www.ssa.gov.