How Is Custody Determined After a Divorce … and What Are Your Rights?

The decision to separate or divorce your partner can be tough, especially if you have children. You may often experience challenges deciding who gets custody of your kids or what property is taken by who.

Custody cases are so unique that the court tries to look at past events of each parent while attempting to predict the future and deciding on the better custodial parent. Additionally, each state has legal standards meant to protect the child’s best interests.

If you are going through a divorce and have children with your soon-to-be ex-spouse, this article will help you understand your rights when it comes to custody.

Deciding the Right Type of Custody for Your Children

Before deciding who will live with your children, you need to understand that there are different types of custody.

These include physical and legal custody.

1.    Physical custody

Physical custody refers to who will live with the child after a divorce. It can be divided into sole physical custody or joint physical custody.

In joint physical custody, both parents spend significant time with the child. On the other hand, sole physical custody allows one parent to spend most of the time with the child while granting the other only visitation rights.

2.    Legal Custody

Legal custody gives you the right to participate in making decisions about your child’s upbringing, such as education and healthcare. Like physical custody, the right can be shared between both parents in a joint arrangement or be solely entrusted to one parent.

Factors to consider when choosing the best custody for your children include their age, the distance between you and your co-parent, your work schedules, and the kids’ academic and extracurricular activities.

How Does the Court Determine Custody?

When you and your co-parent are unable to agree on an effective parenting plan, a judge will hear your case and determine who stays with the child. The decision will mainly be based on the child’s best interests.

Some factors the court will use to rule on child custody include:

The Parent’s Relationship with the Child

This is usually based on the child’s emotional connection with each parent. If one parent has a history of abuse and violence, the court may grant custody to the other parent.

In some situations, the judge may allow the abusive parent restricted or supervised visitation rights.

Here is how to prove a parent is unfit if you are in the middle of an ongoing divorce:

  • A history of domestic violence
  • A history of drugs and substance abuse
  • Inability to make age-appropriate decisions for the child
  • A history of family desertion or abandonment
  • Continuous engagement in crime

In each of the above situations, the trial judge should look for facts and make decisions based on each case.

Each Parent’s Living Situation

The court will consider which parent has a stable home life and can provide the child with a safe and secure environment. They will also look at who between you and your ex can care for the child with consistency, routine, and structure.

Each Parent’s Mental and Physical Health

If one parent has a severe mental illness or substance abuse problem, that may impact the court’s decision. So will the case be if either parent is physically abusive and threatens the safety and wellbeing of the child.

Willingness to Cooperate with Each Other

The court will examine whether the parents can put their differences aside and work together for the sake of their child.

If the parents cannot communicate or work together effectively, it will be difficult for them to co-parent their child. On the other hand, parents who can reach civil agreements easily allow the court to make faster decisions on joint custody.

The Child’s Wishes

As a child gets older, their wishes start to become more important. If the child is old enough, a judge will often consider their wishes when deciding custody.



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