How Does the Court Decide a Custody Matter? Family Lawyers at Vetrano | Vetrano & Feinman LLC Explain
The family lawyers at Vetrano | Vetrano & Feinman LLC are experts at assisting families through the divorce process. Child custody can be an overwhelming issue for couples going through a divorce. Even before a complaint for custody is filed, there are a number of considerations that need to be taken into account. First, who can file for custody of a child? In addition to the child’s biological or adoptive parents, other individuals may have standing to sue for custody. Anyone who stands in loco parentis to the child, meaning that he or she has taken on the obligations of parenthood without formally adopting the child, has standing to pursue any form of custody. Grandparents may also have standing to pursue either primary physical custody or partial physical custody, depending on whether certain criteria are met.
The second consideration is where to file for custody. The general rule is that a custody matter should be heard in the court of the county where the child has resided for the previous six months prior to the custody complaint being filed.
Once the complaint for custody has been filed, there are two main issues to be resolved: legal custody and physical custody. Legal custody is the right to make major decisions about the child’s life, such as decisions involving religion, education and health. In most cases, the parties share legal custody of the child, which means that the parties must consult with each other and reach an agreement prior to making an important decision about the child. Sharing legal custody also means that the parties must keep each other informed about what is happening in the child’s life while in his or her physical custody.
Physical custody is the actual physical possession of and caring for the child. There are many misconceptions about how the courts handle physical custody of children. For example, there is no default position by which the mother gets primary physical custody. In fact, the law specifically provides that no preference should be given to a party in a custody matter based upon gender. In addition, the fact that one party works longer hours than the other does not automatically mean that the spouse who works fewer hours gets more custody time. A party has the right to find appropriate child care during his or her custody time if necessary to enable him or her to work.
Instead of relying upon a default or applying generalizations, the court must determine what is in the best interest of the child in each individual case. To do that, the court must instead consider sixteen different factors. Those factors include: which party is more likely to encourage and foster the relationship between the child and the other party; the parental duties that each party performs for the child; how close the parties live to each other; and whether a party has a history of drug or alcohol abuse.
In addition, the mental and physical health of each party is considered by the court. Because of that, a custody evaluation sometimes becomes necessary. A custody evaluation is an in-depth analysis by a mental health professional who will interview the parties, administer objective mental health assessments, observe the child’s interactions with the parties, speak with other individuals that are involved with the child (i.e., teachers and therapists) and possibly even visit the parties’ residences. The custody evaluator then writes a report about his or her conclusions, which can be used as evidence at trial.
After considering all of the relevant factors, the court must determine more than just how physical custody should be shared on a regular basis. The court will also decide how holidays should be shared, how much vacation time each party will get with the child, and how often the parties should be able to speak to the child when not in his or her custody.
Of course, how legal and physical custody of a child will be shared can be resolved by agreement between the parties, without the need to appear in court at all. Often times, that is the preferred route, because a custody trial can be quite intrusive and cause more animosity between the parties, which can negatively affect the child. In addition, the parties are more likely to be able to craft an agreement that fits with their family’s traditions and lifestyle. Contact the family lawyers at Vetrano | Vetrano & Feinman LLC for help with your custody matter, whether it involves negotiating an agreement or litigating the case through the court.
