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Child Custody and Visitation Frequently Asked Questions

Question: What factors do courts take into account when deciding who gets custody of the children?

Answer: A court gives the "best interests of the child" the highest priority when deciding custody issues. This broad standard is, by definition, fact-specific, and its application in a given situation depends upon a variety of factors, including:
  • The child's age, gender, mental and physical health
  • The mental and physical health of the parents
  • The lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether
  • There is any history of child abuse
  • The love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance
  • The parent's ability to provide the child with food, shelter, clothing and medical care
  • The child's established living pattern (school, home, community, religious institution)
  • The quality of the schools attended by the children
  • The child's preference, if the child is above a certain age (usually about 12), and
  • The ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.

Question: When a court awards physical custody to one parent and "visitation at reasonable times and places" to the other, who determines what's reasonable?

Answer: The parent with physical custody is generally in the driver's seat regarding what is reasonable. This power accorded to the custodial parent can be abused, with the result that the noncustodial parent gets minimal visitation, or, in some cases, a return to court to enforce or modify visitation rights. To avoid such problems, many courts now prefer for the parties to work out a fairly detailed parenting plan (known as a parenting agreement) which sets the visitation schedule and outlines who has responsibility for decisions affecting the children.

Question: If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?

Answer: In a word, yes. Even if a parent leaves to avoid a dangerous or highly unpleasant situation, it's unwise to leave the children behind if he or she wants physical custody down the line.

Question: Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?

Answer: In a few states, including Alaska, California, District of Columbia, New Mexico and Pennsylvania, a parent's sexual orientation cannot in and of itself prevent a parent from being given custody of or visitation with his or her child. As a practical matter, however, lesbian and gay parents - even in those states - may be denied custody or visitation. This is because judges, when considering the best interests of the child, may be motivated by their own or community prejudices, and may find reasons other than the lesbian or gay parent's sexual orientation to deny custody or appropriate visitation.

Question: Are mothers more likely to be awarded custody over fathers?

Answer: In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. This rule has been explicitly rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. the majority of jurisdictions require their courts to determine custody on the basis of the "best interests" of the children without regard to the gender of the parent. The majority of divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that either the mother has more time to care for the children.

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