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Who Gets Custody During Divorce?

February 15, 2023

February 15, 2023

As a parent, there is nothing more devastating than the thought of losing time with your child. Child custody battles are often intense and emotionally charged and can leave deep scars on everyone involved. They are also one of family law's most complex and heart-wrenching aspects. The process can be confusing and overwhelming, whether you are fighting for full custody, joint custody, or simply seeking visitation rights. But in the end, the goal is always the same - to ensure that your child is safe, happy and has the love and support of both parents. But who gets custody?

Legal guidelines for determining child custody and visitation rights

The standard for determining custody is the child's best interests. Joint custody is often favored as long as it is in the child's best interests, but ultimately the final decision is made by a judge. If the parents cannot agree on a custody arrangement, the court will decide based on the evidence presented. To determine what is best for the child, the court will evaluate factors such as:

  • The child's age
  • The child's health
  • The emotional bonds between the parents and the child
  • The parent's capacity to provide care for the child
  • Previous instances of family violence or substance abuse
  • The child's connections to their school, home, and community

The court doesn’t automatically reward custody to either the mother or father, regardless of the age or gender of the children involved. Additionally, the court cannot restrict your custody or visitation rights based on factors such as being unmarried to the other parent, having a physical disability, leading a different lifestyle, religious belief or sexual orientation.

Children deciding whom to live with

In most states of the United States, there are rules regarding the age at which the child can express their preference in custody cases. Typically, children who are 14 years or older are permitted to state their desires to the judge. The opinions of older children are usually given more consideration due to their greater maturity and the ability to decide who should be their primary caregiver. Although the judge must consider the child's views, it does not necessarily mean that the decision will align with the child’s preference. Other factors come into consideration when making the final determination and can cause a different verdict than the child’s preference.

Guardian custody

In some cases, if either parent getting custody can harm the children, the court may give custody to someone other than the parents. This is typically known as "guardianship" and occurs when a non-parent seeks custody of the children because the parents are unable to provide proper care.

Ultimately, the decision made by the court will aim to ensure the children are in a safe and stable environment. The court will take into account the child's opinions, but other factors, such as the ability of the parents to provide proper care and the potential harm to the children, may also play a role. Determining custody after a divorce can be a complex process involving considering the children's best interests and well-being, and seeking the help of legal advisors can ease the process.

Therefore, at JHLegal Helpers, we aim to comprehend our client's true needs and offer tailored professional legal advice and solutions to meet them. Contact us to learn more about our services.