Child custody battles are difficult and traumatic for parents.Below you will find many of your child custody questions answered, the most common child custody issues that puzzle parents and a great overview of the essential workings of how child custody is decided when a relationship breaks down.

If you find this post useful, which I think you will, please share it with your friends or anyone you think may benefit from it by clicking on the button to share at the end of the post.

1.1 The Legal System in the U.S.

Generally the legal system in the U.S. is divided between Federal and State courts. The state courts hear most legal actions and federal courts generally hear only issues of a specific legal issue such as the interpretation of the constitution or if one of the parties is from a foreign country.

The Supreme Court is the top federal court therefore and beneath it is a layer of judicial courts which hears appeals from the federal district courts.

Your custody or divorce proceedings will be heard in a state court and decisions from state courts can be appealed to a court of appeals and appealed from it to the supreme court of the state.

Within the state court system you will have divisions between criminal matters, civil matters, family law, small claims and so on.

Regardless of which state you are in the probability is that you will have 3 tiers of court structure comprised of trial, intermediate appellate and high appellate.
State courts will be scattered throughout your state and operate at district or county level.

1.2 What is Child Custody?

Child custody occurs when parents divorce and an arrangement must be made to decide where the children of the relationship will live. Many times the divorcing parents can come to an agreement themselves but unfortunately sometimes agreement is unattainable.

On these occasions a court will decide who will get custody of the child and this will be based upon one fundamental principle-the best interests of the child.

1.3 Types of Custody

1. Physical Custody

Physical custody is simply the arrangement for where the child will live on a day to day basis but this does not preclude the other parent sharing legal custody which will ensure that the non custodial parent has a right to be involved in crucial decisions concerning the child such as health care, education, religion and so on.

2. Joint Custody

Joint custody is an arrangement where both parents share the amount of time spent with the child equally but this can be an unsatisfactory arrangement as the child can have a feeling of not having one home base. For this reason courts are slow enough to order joint custody.

3. Legal Custody

Legal custody gives a parent the right to make critical decisions about the child’s welfare, education, medical care etc. Legal custody is generally awarded to both parents unless it can be shown that one parent is unfit through the use of drink, drugs and so on.

4. Sole Custody

Sole custody means that the parent has exclusive physical and legal custody of the child and this will only arise where it can be shown that one parent is incapable of any responsible decision making about the child.

5. Joint Legal and physical

Joint legal and physical custody can be looked at in the context of the 2 types of custody, joint legal and joint physical.

As pointed out already joint legal custody involves both parents sharing in the decision making and joint physical involves both parents sharing time spent with the child.

A joint custody order therefore comprises 2 parts- joint physical and joint legal custody and the courts will decide the issue if there is not agreement among the parents, always with reference to what is in the best interests of the child.

Generally there is a presumption of joint custody being the best option in most states and circumstances where it is not ordered is where the parents can not agree or cooperate with each other.

However because joint physical custody will involve keeping 2 homes available for the child, clearly it will be more costly than a sole custody arrangement.

1.4 Conclusion

Generally courts will award at joint custody, in varying degrees, to both parents. Joint legal custody is awarded by all states in the U.S. but some states will not order joint physical custody unless both parents agree to it.

Occasionally neither parent will be deemed suitable by the courts in which case it is often prepared to grant custody to someone other than a parent but courts have a preference for family members rather than awarding custody outside the family.

Reaching Agreement

2.1Agreement between parents out of court

The best option in many instances is for the parents to reach agreement outside the clutches of the court and this can be greatly assisted with the help of lawyers, mediators, counsellors and other professionals.

2.2 Informal negotiations

It is possible to negotiate an agreement to agree custody arrangements and visitation rights without the help of any outside professionals.

But sometimes passions run so high that it can be helpful to engage the services of a lawyer or other professional who will deal with the matter in a more dispassionate way which will also minimise stress for parents and child.

Even if you do manage to come to an agreement you really should have this agreement reduced to paper and finalized by an attorney.

2.3 Alternative dispute resolution

Alternative dispute resolution has grown in importance as an option and relies heavily on the willingness of the parents to come to an agreement and engage meaningfully in the process.

Mediation figures large within this category and involves the parents playing a large part in the attempt to come to an agreement.

2.4 Mediation

Mediation is non adversarial where a mediator meets both parties and assists them in coming to an agreement but the mediator does not impose a solution or judgment-it is left to the parents to do this with the mediators assistance.

Mediation is an attractive option if both parents embrace it with some enthusiasm and is faster and cheaper than the alternative of litigation which can be very costly and run for some considerable time.

Mediators should have considerable experience in mediation and would be well used to the bitterness that can be associated with an issue such as child custody; the mediator will act as a go between both parents in the early stages of the process if the degree of bitterness between parents is such that they find it impossible to engage in a mature way.

If an out of court agreement is arrived at, either through informal negotiation between parents or through mediation or other alternative dispute resolution mechanism, then this agreement should be reduced to paper and brought to court for it’s ratification and final seal of approval.

Once the judge is satisfied that both parties have engaged willingly and understood the significance of the agreement then the court will rubber stamp it and the agreement becomes a binding court order(decree) with the knock on legal consequences if it is not abided by.

Dads, Moms and Grandparents

3.1 Dads or Moms-Who Is Preferred?

Generally the law states that neither mom or dad should be preferred because of their sex-it is up to both parents to prove to the judge that they are the better choice.

However because judges are human beings as well as judges you may well encounter a situation where a judge’s personal preference and prejudice will manifest itself. If this happens to you, you may look for a change of venue which is the same thing as a change of judge.

But you must make your request before the judge hands down his judgment on the meat of the issue. Some states allow a change of venue without the need to offer a reason but once it is transferred it will be difficult to obtain any further changes of venue unless you can point to a specific instance of prejudice or bias on the part of your new judge.

Many judges in the states in the south of the U.S. will favour the mother, all other things being equal. If you are a dad it is up to you and your lawyer to ensure that you put your best case forward and to ensure that all things are not equal from the judge’s perspective.

However prejudice and bias can cut both ways and many judges will favour the father, particularly if the mother is in full time employment or in a professional career which is time consuming.

You really need the assistance of a good attorney who is familiar with the judges in his state and who will be aware of the potential for bias in a decision and who is aware of the nuances of the various judges who may sit in judgment in your child custody case.

3.2 Unmarried Parents

Generally when the parents of a child are not married most states will award sole physical custody to the mother. This can be challenged by the father of

the child but the odds are stacked against the father when the mother can show that she is a good parent.

3.3 Grandparents/family members

Occasionally grandparents or other family members may seek custody (or guardianship as it is sometimes described in these “3rd party” situations) and they start this process by filing a “non parental custody petition”.

Many states have different attitudes and forms to be filled out but it is a similar procedure.

3.3.1 Grandparents and custody and visitation rights

Grandparents have rights in all states to be awarded custody of their grandchildren or visitation rights to them. These rights are not in the constitution though and individual states have begun to recognise these rights only in the last few decades.

This area of law is in a state of flux since the Supreme Court decided in Troxel v Granville that recognising these unconstitutional rights could impinge upon parents rights to raise their children as they saw fit so if you are in this situation and you are a grandparent you really need to check the law in your own state to see what is the current state of play in this regard.

Federal legislation requires that courts in each state recognize the grandparents’ custody and visitation orders that they may have obtained in other states under the Uniform Child Custody Jurisdiction Act.

Generally, since Troxel v Granville, states are very much on guard to safeguard the parents’ rights but grandparents are generally seen as a benign influence on the child and it may well be seen by any court presented with a petition that it is in the best interests of the child that visitation rights are afforded to the grandparent.

Child Custody and the Courts

4.1 How Does The Court Come To A Decision?

The guiding factor in the court’s decision will be the “best interests of the child”. However this can be difficult to define on many occasions and the court can consider the wishes of the child if he/she is old enough.

In deciding the best interests of the child the court will assess the parents and look at their mental and physical health and will also consider who the primary care giver was for the child during the marriage.

The wishes of the child may also be considered by the court in addition to factors such as the opportunities for the child to maintain contact with the extended family of either parent, any history of alcohol or drug abuse by either or both parents, cultural factors, the child’s education and permanence in school, the age and sex of the child and other minor factors.

The primary care giver consideration has become more significant with the increasing use of psychologists in assisting the court’s decision.

Psychologists are of the view that the bond between the primary care giver and the child should be maintained to the greatest extent possible, particularly from the perspective of the child’s developmental stages, and for this reason the primary giver consideration will hold a large amount of sway.

4.1.1 Who Is The Primary Care Giver?

The court will make this decision based on factors such as who prepares the meals for the child on a daily basis, who is involved in helping the child with his/her school work, who arranges medical care arrangements, who buys the child’s clothes and the other crucial, day to day activities of the child’s life.

If there is no clear care giver and both parents have shared equally in these tasks, then the court will revert to what it considers to be “the best interests of the child”.

The question of who is the primary care giver is difficult decision for the court to make on occasion and at such times the court will use a table like the one below to decide who is the primary caregiver..

Who was usually or most often responsible for performing the following childcare responsibilities?

Task                                                         Mother                                                                       Father

Feeding infant
Feeding younger children
Changing diapers
Holding/cuddling
Preparing meals
Packing lunches
Grocery shopping
Changing diapers
Dressing
Doing laundry
Buying clothing
Maintaining clothing
Bathing
Washing hair
Styling hair
Brushing teeth (help with or enforce)
Putting to bed
Reading stories, books
Helping with homework
Taking to/picking up from school
Taking to/picking up from extracurricular activities
Conferencing with teachers
Attending school open houses
School volunteering
Choosing schools
Helping choose classes
Attending PTA/PTO meetings
Taking to/picking up from religious services
Taking to/picking up from religious classes

Taking to/picking up from sports activities
Coaching sports teams
Taking to/picking up from lessons
Taking to/picking up from play dates
Arranging play dates
Hosting play dates
Taking to/picking up from birthday parties
Hosting birthday parties
Shopping for gifts for friends
Shopping for gifts for child
Shopping for school supplies
Shopping for toiletries
Taking to doctor
Taking to dentist
Taking to orthodontist
Making doctor/dentist appointments
Taking care of sick child
Hiring babysitters
Picking up/dropping off babysitter
Arranging day-care
Taking to/picking up from day-care
Planning holidays
Planning vacations
Teaching values
Teaching manners
Monitoring chores
Teaching sex education
Taking to park
Playing with indoors
Playing with outdoors
Cleaning home
Maintaining home
Other (please list):

4.2 Who will win custody of the child?

Firstly this will depend on a number of factors and the principal one is who is making the decision—the parents or the courts.

If the parents can come to an arrangement between themselves then they will ultimately decide who gets custody of the child and what form that will take between legal custody, physical, joint and so on.

If the parents can not come to an agreement then the courts, specifically the family law court, will decide. This decision will depend on a number of factors and the principal considerations are “what is in the child’s best interests?” and “who is the primary care giver to the child?”

In addition to these 2 critical factors the court will also have regard for the preferences of the child but this will depend on the age of the child, the maturity and some other factors and many courts will disregard the preferences of a child who is under a certain age, say 7 years, as the court will often take the view that the child is too young to know what is best.

Also if a child is expressing a preference for one parent over another for the wrong reasons or appears to be coached to prefer one over the other, the court will disregard his preference.

One state in the U.S., Georgia, will respect fully the preference of a child who is over the age of 14 years, provided the parent is a fit parent.

The court may also have reports prepared by psychological and social work specialists in order to better inform his decision and if the judge wishes to talk to the child about this he will do so in his office(judges chambers)rather than in open court. The parents will not be present for such a chat.

4.3 Non Marital Sexual relationships

Non marital sexual relationships will not impact adversely on the judges’ decision to award custody to that parent, provided the relationship has not caused distress or embarrassment to the child.

As with all decisions to be taken by a judge you can not rule out the personal views of a particular judge being a factor in a decision. I know the law is the law but the law is interpreted by judges who are individuals and it is not improbable that you may encounter a particularly liberal or conservative judge.

In these circumstances you need a good attorney to recognise the individual foibles of judges and take appropriate action.

4.4 Homosexual relationships

The treatment of homosexual relationships will vary from state to state and judge to judge; suffice to say that the less sexual contact between the parent and the parent’s partner the better from the court’s viewpoint.

Many states such as California and New Jersey ensure that the sexual inclination of a parent should not inhibit their ability to gain either custody or visitation rights.

However in the real world judges will let their own views and prejudices color their judgment and decision.In these circumstances you need to consult your lawyer and civil rights organisations for more specific advice and assistance.

4.5 Badmouthing the other parent

Courts take a dim view where a parent attempts to undermine the child’s view of the other parent; all things being equal the parent who does not do this and who encourages the child to look benignly on the other parent will win the custody battle.

4.6 Religion

The courts are not inclined to take a view as to whether a child is better off with or without religious instruction as the First Amendment to the Constitution allows total freedom in this regard but the child’s best interests will always trump everything else so if the child has been used to a particular religious instruction then the court will give this some weight.

The only circumstance where a parent’s religious belief can be a significant factor is when that religious practice can be detrimental to the welfare or health of the child.

So if the religion in question does not permit blood transfusions for example then this may be something that the court will consider.

4.6.1 In the Marriage of Mentry (California Appellate Court, 1983)

In this case the mother, a member of a Christian church, attempted to have the father restrained from engaging in any religious activity for the was a member of the Church of the Latter Day Saints(The Mormons) on the basis that the child was confused about the doctrinal differences between churches.

The Court of Appeal in California held that the mother’s request for such an order was an “unwanted intrusion into family privacy” and rejected her request.

However a contrary decision was reached in 2001 in Vermont in Meyer v Meyer. In this case the father was a Jehovah Witness and the mother sought an order seeking to have the father prevented from bringing the child to Jehovah Witness gatherings.

In this instance the court granted the order to the mother on the grounds that they were only giving effect to the choice of the mother and who was awarded sole custody after the modification of the previous joint custody agreement because a lot of evidence of confusion and anxiety being suffered by the child as a result of the conflict between religions was presented to court by children’s professionals and counsellors.

4.7 Race in child custody battles

Race can not and should not be a factor in child custody situations, particularly since the Supreme Court decision in the Palmore v Sidoti case of 1984 where the Supreme Court reversed a previous decision of a Florida court which was heavily influenced by the race factor.

4.8 Child Custody in Non Divorce Situations

Child custody issues can arise where the child’s parents are not married or where a grandparent may wish to obtain custody of the child or at least enforce their rights to visitation.

4.9 Unmarried parents

Most states will grant sole physical custody to the mother unless she is an unfit parent. However fathers can take legal action to obtain visitation rights and some form of shared custody.

For this reason it is always in the father’s best interest to try to negotiate an agreement with the mother rather than let the court make the decision.

As outlined earlier in the factors that the court will consider to be important such as the child’s best interest and who is the primary care giver, in non married situations the primary care giver factor carries considerable weight.

How To Get Custody of Your Child

5.1 How To get custody

Perhaps the easiest way to help you in relation to how to get custody of your child is to look at some questions that regularly pop up.

What Factors does the court take into account when making a decision?
As pointed out already the paramount concern of the court is the best interests of the child and to aid with this decision the court will look at

1. The child’s age and health, both physical and mental
2. The parent’s health and lifestyle
3. The relationship between parent and child
4. The parent’s ability as a parent and to provide the child with the necessities such as food, shelter and education
5. The child’s education and general day to day living circumstances
6. The child’s views may be taken into account as dealt with already and depending on the child’s age, maturity etc.

Generally, although it is difficult to generalise, the younger the child is the more likely the court will favour the parent who has been the primary care giver.

The parent who can ensure the least upheaval in the child’s life will be in a strong position for this reason and the settled life of a child in a neighbourhood and school will only be interfered with by the court reluctantly.

5.2 Mothers versus fathers

Traditionally courts favoured the mother in practically all situations but this has changed significantly and the situation now is that the father has an equal chance provided he is as good a parent and caregiver as the mother.

Many fathers assume, wrongly, that regardless of what they do that the mother will be awarded custody.

But this is not the case and if, for example, both parents are working outside the family home then the father can have an equal chance of gaining physical

custody of the child. To do so he needs, like the mother, to ask the court to award custody to him and to present his best case and essentially persuade the court that it is in the best interests of the child that he be awarded custody.

If a parent moves out of the family home and leaves the children, is this detrimental to his chances?

Leaving the family home and the child with the other parent is injurious to your chance of subsequently gaining custody later and the reluctance of the courts to move a child from his familiar environment and friends/school means that the parent who stays put will be favoured.

If a parent feels that they have no choice but to leave due to the other parents behaviour, then it is prudent to take the children and file immediately in the court for a temporary custody and child support order.

To take the children and not file for temporary custody and bring the matter to the attention of the court can backfire spectacularly because the court will look with considerable disfavour on this circumstance and may well order the return of the child to the family home pending settlement of the matter in the court.

5.3 What about joint custody?

Joint custody is where both parents share custody to various degrees. They can share equally or in whatever proportion the court decides and there are 3 types of joint custody, namely, joint physical custody, joint legal custody and joint physical and legal custody.

5.4 Visitation rights

A parent who does not win custody of the child will be entitled to visitation or parenting time. The amount of time will depend on the circumstances, the distance apart that the parents live and any requests from the parents.

A common award of parenting time is every other weekend but if the parents live far apart then the non custodial parent will get more time during school holidays.

A parent can be denied parenting time if the court considers it is not in the best interests of the child such as when the child may be put in danger or at risk of harm or kidnapping.

If this occurs then the parent may have access to the child only under supervision of a responsible adult or social services.

If parents can not agree on visitation or there is a high degree of conflict between them then a very specific parenting or visitation schedule can be drawn up and approved by the court.

It is sensible for parents to review their parenting plan as the child grows older because the child’s needs will change with maturity and this should be reflected in the parenting plan.

When a parent wins physical custody and the other parent gets visitation rights, these rights may be exercised “at reasonable times and places”.

This can be problematic because who says what is a reasonable time and place and clearly this puts the parent who has physical custody in a strong position to mess around the other parent.

For this reason courts encourage strongly the parents to work out a parenting plan to ensure reasonable access to the non custodial parent. This plan should be really agreed between parents before going to court to enable the judge to make it part of his order when making his custody decision.

For this reason mediation may be a helpful solution to solve any outstanding issues and it is better to come to a mediated agreement rather than have the court impose a solution.

Mediation should be cheaper than a legal battle and is quick compared to a legal battle which can drag on for months or even years.

It must also be recognised that if the interests of the child are to be put first, then parents who engage in mediation show their children that even though they have broken up they can still communicate like rational human beings and this has a very positive long term effect on the development of the child.

Other Child Custody Issues

6.1 Step-parents

Generally a step-parent is not liable for the maintenance of a child from a spouse’s previous marriage but this does vary from state to state as some states do hold the step-parent liable if the step-parent and stepchild are living together.

Also a step parent can not obtain custody of a child where the marriage ends in divorce unless he/she has adopted the child to begin with.

6.2 Modification of custody

A court can modify a custody order previously made if the circumstances warrant it. The parent who is seeking a modification of custody order must show the court that the circumstances have changed significantly since the making of the original order.

This modification of custody is discouraged be some states in the U.S. in the first few years of a custody arrangement by imposing a higher standard of proof of change of circumstances-the courts will need to see that the child is also endangered in his current environment if the application for modification is to be successful in the early years of a custody arrangement.

However if the parents decide between themselves that they are agreeable to modify the custody arrangements then the court will allow it and not stand in the way. It is a smart move though to go to court and get an order ratifying this change to cover the situation where a parent changes his/her mind in relation to the new arrangement.

It is worth noting also that a parent will still have their child support obligation, even though they may be successful in having a custody arrangement modified.

Generally a court will approve a modification where the parents are in agreement unless it is not in the best interests of the child.

6.2.1 Changes of circumstances to warrant a modification

The types of significant changes in circumstances which might warrant a change in custody arrangements includes

1. A significant change of location

This may bring about a change in the existing custody arrangement and could see custody moving from one parent to the other. Before this happens the court will encourage the parents to agree on a parenting plan to reflect the changed circumstances.

The attitude of courts varies from state to state with the overriding importance of the child being paramount in every circumstance.

2. Significant change of lifestyle

If a change of lifestyle threatens or endangers the child then the non custodial parent can easily apply for modification.

The excessive use of drugs or alcohol by one or other parent will allow the concerned parent to get a modification order which might include visitation rights and this would include the custodial parent seeking to limit visitation rights for example for the errant parent.

6.2.2 Out of jurisdiction moves with the child

The attitude of courts to this event varies from state to state; some states are very reluctant to agree to it and will place restrictions in the custody order to reflect this.

Other states have traditionally allowed it but now the situation seems to be moving more towards a situation where the child can not be moved without the consent of the other parent and the insistence of serving notice on the other party of their intention ot move.

A 60 days notice requirement is not uncommon and this will allow the non moving parent to seek a direction or order from the court.

The court will consider a number of factors before allowing the move such as
1. The reason for the move
2. The advantages to the child
3. The reasons that the non custodial parent opposes it
4. The likelihood of continued access and relationship with the child by the non moving parent

1. Reason for the move

If the parent who is moving with the child has a bona fide reason for the move such as getting a better job or moving to be near family then that should not

be problematic. However if the reason is not bona fide and is intended to deprive the other parent of contact with the child then the court will not look favourably on any proposed move.

2. Advantages to the child

If an advantage to the child is claimed then it will have to be proven to the court. Such claimed advantages would include the furthering of the child’s education in a better school or college or better medical facilities for a medical condition that the child has.

3. Reasons for opposing the move

The non moving parent may well have a good reason for opposing the move and the primary good reason is the fear of loss of contact and relationship with the child. This would certainly be considered as an important reason for a court to support the parent who is opposing the move.

4. Continued access and relationship forming

If the relationship between the non moving parent and child can be maintained by the restructuring of the visitation schedule then the court is more likely to look favourably on this and this can occur on occasion if the visitation schedule can provide for more time for the non moving parent during school holidays for example.

However some courts view the frequency of contact as being more important than sporadic large chunks during holiday time and in these circumstances the court may not allow the move.

There are no hard and fast rules in this regard and courts will differ but it is important for both parents to try to come to some agreement to ensure a smooth move from one state to another.

6.3 Child abduction

Child abduction is a crime and the costs of the parent who is seeking the return or location of the child can win the costs of doing so from the abducting parent. If you fear this eventuality or have some suspicions in this respect you need to consult a lawyer quickly and seek the appropriate court order or injunction to prevent the abduction from occurring.

6.4 State Laws in relation to child custody

Here is a summary of the attitudes of many states in the U.S. when it comes to child custody. It is important to recognise significant differences between states and you will need to ensure that you have appropriate, experienced legal advice in the state in which your case will be fought.

Alabama
Both parents have equal rights to custody in Alabama and joint custody is a possibility where both parents will have significant input into all decisions surrounding the child and one parent can be awarded primary custody and the other parent secondary custody.

Alaska
In Alaska there is no presumption of one custody arrangement over the other and the best interests of the child will be the paramount consideration.

Arizona
In Arizona joint custody can be granted if the parents agree and submit a parenting plan and it is in the child’s best interests. If joint custody is ordered then the non custodial parent will have reasonable visitation rights awarded.

Arkansas
The primary interests of the child trump all rights in Arkansas and the court will be guided in it’s decision by this yardstick.

District of Columbia
Again, the best interests of the child are the primary guiding factor for the court and there is no presumption of joint or sole custody with each case being judged on it’s merits.

Florida
Generally in Florida you will experience the awarding of custody to both parents and rotating custody is also a feature in Florida.

Georgia
In Georgia a child over the age of 14 can choose which parent he/she wishes to have custody and this decision will be respected provided the parent chosen is not an unfit parent.

Hawaii
The best interests of the child are the primary factor in Hawaii and sole or joint custody can be awarded with visitation being awarded to grandparents also.

Illinois
The best interests of the child are paramount with no presumption of joint or sole custody.

Indiana
As with many states the child’s best interests will reign supreme and you will see awards of both sole and joint custody in Indiana.

Iowa
In Iowa there is a presumption of joint custody if either parent requests it or if the court does not award joint custody it must explain why not awarding joint custody is not in the best interests of the child.

Kentucky
Joint custody can be granted in Kentucky and the court in making it’s decision may not have any regard for leaving the family home if it was to avoid physical harm.

Louisiana
In Louisiana there is a presumption of joint custody in the absence of agreement from the parents. However if it can be shown to the court that it is in the best interests of the child then sole custody can be awarded with visitation rights awarded to the non custodial parent.

Maine
Joint custody or sole custody can be granted in Maine in the absence of agreement between the parents.

Maryland
Joint or sole custody can be awarded in Maryland.

As can be seen from this sample of states in the U.S. it is clear that sole or joint custody can be awarded in the vast majority of states with the child’s best interests being a guiding consideration and with some states according a certain weight to the child’s wishes, depending on his motivation and maturity.

6.5 Grandparents and Custody and Visitation

In the Troxel v Granville case ruled on in 2000 by the Supreme Court it was decided that “so long as a parent adequately cares for his or her child, there will normally be no reason for the state to inject itself into the private realm of

the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children”.

This decision has made it much more difficult for grandparents to obtain custody; the court did leave the possibility open of a court ordered visitation order for grandparents.

This is more likely to happen when the parent does not exercise their visitation rights to the child thus making it very difficult for the grandparents to see their grandchildren. In these circumstances the court is likely to make an order which will afford visitation rights to the grandparents.

It is possible for grandparents to win custody of the child but they will need to prove to the court first that the parent is an unfit parent which can be difficult to do.

However where the grandparent can show that they have raised the child under an informal arrangement then the court may consider them to be the “psychological parents” of the child and in such circumstances the courts can and will award custody to the grandparents, even where the parents subsequently become fit to be parents.

The factors that a court will consider when deciding on a grandparents custody request are slightly different from the normal pre conditions that are at work when a parent is seeking a custody order.

The best interests of the child are the guiding principle with the following being most important factors when grandparents are seeking custody or visitation rights-
The wishes of the parents and grandparents

The child’s best interests

The ability of the parents and/or grandparents to address the needs of the child

The relationship between the grandparent and child

Evidence of neglect or abuse by the parent

The physical distance between the grandparent and child

The ability of the grandparent to provide love and affection.

If a grandparent wishes to make an application to gain custody or visitation rights then the appropriate state within which to make the application is the state in which the divorce proceedings are being held if divorce proceedings are in being or contemplated.

If this is not the case the state which will generally have jurisdiction is the state in which the child normally resides which is generally to be defined as a

period of 6 months of the date of the legal application provided at least one parent still lives in the state.

It is important to state quite unequivocally that whilst you need to equip yourself with as much information as you can to prepare yourself for the battle ahead it is strongly recommended that you seek the assistance of an attorney in your own state or jurisdiction.

Disclaimer

The material contained in this document is provided for general information purposes only and does not constitute legal or other professional advice. Whilst every care has been taken in the preparation of the content of all pages on this site, specific legal advice should always be sought on the application of the Law in any particular situation.

We strongly recommend employing a legal professional to interpret and advise on ANY aspect of the law.