How is Child Custody Determined?
Child Custody is the most important aspect of most people’s divorce cases. Even when there is no argument over who the child or children will reside with, it is important to know your legal rights, especially the difference between physical custody and legal custody and to make sure that you maximize your abilities to enforce those rights throughout the years.
When a divorce process begins, it is surprisingly important which parent has initial custody of the child or children. Though some divorces can be resolved quickly, others drag out and some couples are separated for some time before court actions begin. Depending on the age of the child and the length of separation and proceedings, by the time a case comes to trial, the length of time that a child or children has been with one parent can factor into a court’s decision! There are legal means to decide where children will reside during the divorce process.
During an initial divorce proceeding, (unless the parties agree on custody) courts use the “best interest” standard, also known as the “Couch Standard” to determine which party is best suited to have primary custody. Factors that go into that decision include the age and gender of the child, the home environments offered by each party, the relationship between the parents and the children, and the preferences of the children, if they are of a sufficient age, among many other situation-based factors.
Visitation is usually a set standard with one party getting physical custody and the other getting standard visitation (every other weekend, swap holidays, half the summer, etc.), unless the court finds that joint physical custody is more appropriate or the parties agree to something particular. Either way, courts prefer for one parent to have the majority of physical time with the child so that there is stability and regularity of schedule in a child’s life.
Modifications of Child Custody
Depending on the legal status of your child custody rights, there are different legal standards or benchmarks that must be met or passed in order to change child custody. Depending on the facts of each case, the ease with which custody can be changed ranges from relatively simple to extremely challenging.
Standards for Changing Child Custody
If you and your ex-spouse have joint legal custody of your child or children, the standard that must be met, as listed above, is known as the “best interest” test, also known as the “Couch Standard.” This is fairly self-explanatory. A judge will decide that living with one parent or the other is in the best interest of the child depending on an innumerable variety of factors similar to those listed above and any reasonable real-world factor that one can think of.
If your spouse has primary or sole physical custody and you have visitation, the standard for changing physical custody is higher and more challenging to reach. This standard is known as the “McLendon Standard.” This standard assumes that moving a child from one home to another has a built-in disruptive effect. The standard then questions whether the best interests of the child in moving from one caretaker to another overcome that inherently disruptive effect.
Always remember that each and every case is different; sound legal advice can only be attained by speaking directly to a knowledgeable and experienced attorney! Contact us now.