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December 03, 2020

Deciding Custody

What is “child custody”?

Child custody is the right and duty to care for a minor child on a day-to-day basis and to make major decisions about the child. Custody can mean both taking care of the child and the ability to make decisions or just one aspect.

How is custody decided?

If possible, the parents should reach an agreement on the terms of custody and visitation and they should be set out in an agreement. The more specific the terms of your agreement, the better and easier it will be to enforce. If you and the other parent cannot agree, then it will be up to the courts to decide the issues of child custody and visitation, usually at the time it is holding the hearing about your divorce.

Can a legal assistance attorney help me file for custody?

No—you will need to hire a civilian attorney to help you. Of course, the legal assistance attorney can help you find such a civilian attorney. A legal assistance attorney may also be able to help you fill out the paper work if you want to file your custody order "pro se" (meaning, on your own) if you are unable to afford a civilian attorney and you agree on everything. Most courts allow parents to file pro se custody agreements if both sides are able to agree on everything; ask your legal assistance attorney to find out if this is appropriate for your circumstances and the steps to take.

Where should I file for custody of my children?

In the United States, you should file in the county where the child has been living for the last six months. If you have questions, you should talk to your attorney; filing with the correct court is important.

If I have joint custody of my daughter, does that mean I split time with her other parent 50/50? What is the difference between joint and sole custody?

In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child. Different states may use different terms (e.g., timeshare, possession, or conservatorship) to refer to custody. Some states refer to time spent with children as physical custody and to decision-making authority as legal custody. A court need not award physical custody and legal custody the same way. In other words, a court might award physical custody to one parent (with the other receiving visitation rights) but decide that decision-making authority (i.e., legal custody) is to be shared jointly by both parents.

What factors do courts consider when deciding custody?

The most important factor that courts consider is what is in the best interest of the child. The deciding factors will vary with the facts of each case, but the courts will always look to what is in the best interest of the child. Specifically, the court will consider evidence relating to the child’s needs and each parent’s ability to meet those needs, and will award custody accordingly. Regardless of which parent has primary custody, children are usually best served when the child has continuous meaningful contact with both parents.

Don’t mothers automatically get custody?

No. There is no automatic preference for either mothers or fathers. The court will look very closely at which parent will best promote the welfare of the child. The best interest of the child is the most important factor.

Will my military service be held against me during the custody hearing?

No. Military service alone does not mean that a person is automatically disqualified from having or winning legal custody. It does, however, put a heavy burden on you to prove that your military duties will not interfere unnecessarily with the custodial role. You will need to be able to provide the court with details explaining how your service and readiness will not be inconsistent with your custodial duties.

And remember, your service does come with some benefits that can be in your favor for custody purposes. Think about the quality of schools on base, the recreational facilities, the dependent youth activities, day care facilities, and the enrichment associated with travel to other states and countries.

My daughter has made it clear that she wants to live with me. Will the court take that into consideration?

The wishes of a child can be an important consideration. The weight a court gives to the child’s wishes will depend on the child’s age and maturity, on the quality of his or her reasons for wanting to live with one parent or the other, and state law. A court may be more likely to honor the preferences of an older child, although the court will want to assess the quality of his or her reasons. If a child wants to be with a parent only because that parent offers more freedom and less discipline, then a judge is not likely to honor the preference. Similarly, a child whose reasons are vague or whose answers seem coached may not have his or her preferences honored.

Will my child have to testify during the custody hearing?

This will depend on the facts of your case and on your child’s age and maturity level, as well as state law. Judges may talk to the child in the judge’s chambers rather than in open court. In some jurisdictions, but not all, the mother's and father’s lawyers have a right to be present during the interview. In some cases, the judge may appoint a mental health professional, such as a psychiatrist, psychologist, or social worker, to talk to the child and report to the court. Also, in some states a lawyer will be appointed to represent your child.

My (soon-to-be) ex-wife cheated on me. Shouldn’t that count when deciding custody?

No. Marital fault rarely plays a role in custody determinations. Just because your wife was a bad spouse, it doesn’t mean she is a bad mother. Such circumstances will only count if you can show that your wife’s on going behavior will impact your children (for example, if she is frequently going out on the weekends and not providing proper care for the children).

A Florida court gave me custody of our children but my wife just took them to South Carolina. Do I now have to go to a court in South Carolina to get another court order?

It is possible, however, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) should apply and likely protects your rights. The UCCJEA applies in all 50 states and the District of Columbia and provides a lot of protection for child removal and kidnapping. The UCCJEA is a complicated law and should be interpreted by an attorney for your particular situation. You should meet with a military legal assistance attorney or a civilian family lawyer.

My ex-husband’s family all live in Florida (we currently live in South Carolina). I am afraid he is going to take our children and move to Florida. What can I do?

Assuming you have a custody order, your ex-husband will have to follow the order unless he goes to court to get it changed. His ability to do this will be controlled, in large part, by the UCCJEA. An attorney should advise you about this if you have questions.

There is, of course, no guarantee your husband will follow the order. If you think there is a chance your husband might kidnap your children, talk to your attorney immediately. Do not simply keep your children from your ex-husband if he has a right under the order to see them. Instead, work with your attorney to see if you can get supervised visits if your fears are well-founded.

If your ex-husband decides to move to Florida, he may be able to ask the court to change the order so that he can, legally, take the children with him. However, family courts usually try to maintain as much stability as possible for children. Your husband will need to be able to prove to a court that the change will be better for your children.