Any parent who has gone through a divorce, separation or break-up knows full well that the issue child custody - of when they can spend time with their children - is not always resolved with the issuance of a Court Order or entering into an Agreement with the other parent. All too often, a parent's time with the children is frustrated by the other parent, who, for whatever reason, fails and/or refuses to produce the children for custodial time. This behavior can have devastating effects on both the parent who has been denied access and his or her children.
What to expect from the courts..
By the time access is denied a parent, he or she may have little recourse. Even if the Courts are open at the time the other parent fails to produce the children, there is no guarantee that the necessary paperwork to file a Violation can be prepared immediately or that a Judge will be available to address the matter promptly. Anyone who has been through the Court system is aware that, from the time an application is filed, it may take weeks before the parties are actually scheduled to appear in Court to have the child custody issue resolved. During that time period, the other parent may continue to withhold custodial access.
This is not to say that there are not steps which you can take to protect yourself. Sound advice about legal matters when it comes to child custody plays a major role. As a general rule, avoid informal agreements with the other parent about your custodial time. You must insist that the terms of your agreement be formalized either in a written Court Order or an enforceable written Separation and Settlement Agreement. Without such formality, a Court will not be able to hold the other parent in violation of your in
formal agreement.
What factors do courts take into account when deciding who gets custody of the children?
A court gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends upon many factors, including:
the child's age, gender, mental and physical health
the mental and physical health of the parents
the lifestyle and other social factors of the parents, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
the love and emotional ties between the parent and the child, as well as the parent's ability to give the child guidance
the parent's ability to provide the child with food, shelter, clothing and medical care
the child's established living pattern (school, home, community, religious institution)
the quality of the schools attended by the children
the child's preference, if the child is above a certain age (usually about 12), and
the ability and willingness of the parent to foster healthy communication and contact between the child and the other parent.
Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.
Are mothers more likely to be awarded custody over fathers?
In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tie-breaker if two fit parents request custody of their pre-school children. No state requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests without regard to the sex of the parent.
As it turns out, most divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that the mother has more time, a greater inclination or a better understanding of the children's daily needs.
