custody

How Child Custody is Determined

Child custody is court-determined legal guardianship of a child under the age of 18. Child custody laws are created and enforced by individual states and are based on what is in the best interest of the child. In most cases, both parents continue to share legal child custody but one parent gains physical custody.

Because child custody is not determined by the federal government, the laws in each state have varying factors and hiring an experienced family lawyer can help clarify the situation.  States like Pennsylvania used to follow an unofficial code called the “Tender Years Doctrine” which was based on the idea that a mother’s instinct made her the better candidate; therefore she would receive sole custody unless the father petitioned otherwise. States are no longer permitted to assume that the mother is a better fit, and are required to consider many other factors. Some states consider the child’s preference to be highly significant while other states fail to recognize their wishes at all. For example, in states like California and Florida courts will consider the child’s opinion if they are at least 12 years old. In New Mexico the child must be 14 years old in order for their wishes to be taken into consideration, and in Arizona the courts always want to hear what the child prefers.  Still, according to Tampa family attorney Scott P. Davis, the mother is awarded custody in between 70 and 90 percent of divorce cases where custody is in questions.

There are numerous things that courts look into when determining who receives custody and whether one person will get sole custody, the two parents will split joint custody, or if the custody will go to a third party. Every state looks at all history of drug use and abuse, domestic violence, child abuse, child abandonment and child neglect. Some states will even mandate a drug test for parents with a history of drug use. Other significant factors are the mental and physical condition of each of the parents, as well as the family dynamics and relationships that each parent has fostered with the child and with each other.

Joint custody will be ordered only if the conditions are appropriate. A court will consider the relationship that each parent has with the other and with the child, level of agreement of parenting styles, the geographic distance between the parents, and each parent’s ability to adequately provide for the child. Third-party custodial rights will be granted if the child will be in danger or subject to harm in the care of a parent, and granting custody to a third-party custodian will serve the best interests of the child.

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