How Is Child Custody Decided?
- Though most jurisdictions do not adhere to a strict judicial test in resolving custody disputes, all courts make an inquiry into what custodial arrangement is in the child's best interest. This inquiry involves an examination of a variety of factors, including, but not limited to, the wishes of the child; who has been the primary caretaker; the suitability of each parent to care for and nurture the child; and any history of domestic violence or child abuse. No one factor is to be given more weight than any other, and the court should make its determination based on the totality of the relevant circumstances.
- Physical custody, the provision of daily care to the child, may be awarded jointly to both parties or solely to one party, usually with reasonable visitation rights granted to the noncustodial parent. In a joint or "shared" custody situation, the parties adhere to an alternating schedule of visitation. The schedule may alternate daily, weekly or monthly.
- Legal custody---the right to make material decisions regarding the upbringing of the child---may also be awarded jointly or solely to one party. In a joint legal custody situation, each parent has an equal right to contribute to the material decisions regarding the child. In a sole legal custody situation, only one parent has the right to make decisions regarding the upbringing of the child. Unless a parent is deemed unfit, most courts will award joint legal custody.
- Once the court has awarded custody, the noncustodial parent has the right to seek modification of the court's custody order. In most jurisdictions this right exists in perpetuity until the child reaches the age of majority and is a legal adult. In child custody modification proceedings, the noncustodial parent has the burden to prove that there has been a material change in circumstances and that modification is in the best interest of the child. This showing may be made by proof that, among other things, there has been a material change in the custodial parent's lifestyle that threatens the safety or emotional well-being of the child.
- Most custody disputes arise between the mother and father of a minor child. There are instances, however, in which a non-parent third party may wish to challenge an existing custody order or to seek custody simultaneously with the parents. In such a case, the third party must overcome the presumption in favor of granting custody to biological parents by showing that both parents are unfit to care for the child or that some other extraordinary circumstance exists that make parental custody detrimental to the child's best interests.
- Not all custody disputes have to be resolved by court intervention. Many custody arrangements are made by private agreement between the parties or by private mediator. In the divorce context, any private agreement reached by the parties must be submitted to and approved by the court. It will then be read into the divorce decree and modifiable as discussed above.