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A custody agreement is required when parents divorce. But, if the parents are unmarried, they can choose when to file for custody. Learn how custody and visitation rights are determined and how they might be altered, so you can create a parenting plan that best suits your child’s needs.
Child custody refers to a person's legal right to their child. A child lives with the parent or guardian that has physical custody. This person will typically also have legal custody, which allows them to make important decisions about their education, medical treatment, religious upbringing, and more.
In many states, when a child is born outside of marriage, the mother is automatically granted custody, unless she has given up her parental rights. The father may petition the court to have his paternity recognized and then campaign for custody or visitation rights.
When children are born within a marriage, both parents have full custodial rights until the family court determines an appropriate custody arrangement. If you and your spouse agree on issues related to your children, you can create a parenting plan that includes decisions related to child custody. If the judge thinks that your agreement is in the best interest of the children, they will approve it.
Court decisions exist to protect the child's best interests. Different states define a child's best interest in various ways, but there are some similarities between the way judges typically rule. For example:
Consistency. Usually, primary custody will be granted to the parent that they spend the most time with.
Parent behavior. Only behavior that could put the child at-risk will have an impact. For example, an extramarital affair the child didn't know about probably won't impact a judge's decision, but a history of drunk driving or domestic violence will.
The child's preference. In many states, a child's wish to live with one parent over the other will be considered.
Unless it would be harmful, judges want both parents to have access to their child. A visitation order formalizes this access. A judge may grant reasonable visitation, which allows the parents to decide on the best agreement for themselves, or fixed visitation, where visitation is granted at specific times, and sometimes at specific places.
Reasonable visitation is the preferred option in the child custody process, as it allows parents to formulate a plan that considers their own schedules and their child's. Fixed visitation is most commonly granted when parents are still in conflict and are not likely to cooperate.
Once the agreement has been approved by the court, they can be modified if
Either parent may lodge a petition to change custody or visitation rights. This parent must then present evidence to show changes are necessary.
The agreement can only be changed within the first 2 years if it's endangering your child's physical, emotional, moral, or mental wellbeing. The party lodging the petition must provide at least 2 sources to support this.
After 2 years, the person seeking the change only needs to show circumstances have changed, and that modifying the agreement is in the child's best interest.
Going through the child custody process can be difficult, but the help of an experienced family attorney can give you the perspective and objectivity you need for the best outcome.
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