How are Decisions made about Custody?

In any situation where there is a dispute over the custody rights of a minor, it raises a number of questions. If you are going through a divorce, you will want to know if your child will live with you; if it will not, you will want to know if you can make important decisions about their upbringing. If you are a relative or close friend of the family of a minor of whom I would like to get custody, you may be wondering if getting custody of that child is even a possibility.

The answers to these questions are the root of most custody situations, but for parents and others without significant experience in the custody of the child and in the legislative system, a key concern is the following: How decisions are made about custody?

Below is a brief discussion in response to that question.

The divorce and the decisions on the custody of a minor

If you are a parent(mother) who considered divorce, or if you are already in the process of divorce, you’re probably wondering how it is resolved in a divorce, the custody and visitation of minors. In general, as in all aspects of a divorce — including property division, child support, separation, financial, and spousal support (pension) — the custody and visitation for minor children will be decided through an agreement between the divorcing parents (usually with the help of lawyers and mediators), or by the court. More specifically, in the divorce, decisions regarding custody and visitation are resolved, typically in one of two main ways:

1. Parents who reach agreement about child custody and visitation as a result of the following:

  • Informal negotiations of an agreement (usually with the help of lawyers); or
  • Alternative solutions of disputes outside of the court, such as mediation and the “law of cooperation” (usually with the help of lawyers).

2. The court takes the decision on custody and visitation (usually a family court judge).

Parents who are not married

When the parents of a child are not married, the rules require that you give to the mother individually the physical custody of the minor, unless the parent is exercising any action to be granted to him the custody. A single father often cannot win custody of the child to be a good mother, but you can follow certain guidelines to make sure that you are awarded, so another form of custody, such as visitation rights.

For parents who are not married, and contesting the custody of a minor child, the options for a decision on the custody are almost the same as that in the case of couples who divorce: child custody and visitation will be resolved through an agreement between the parents or by the family court. However, unlike divorcing couples, couples without getting married do not need to solve any complicated issue (or contentious) related to the division of property and child support payment for the spouse; therefore, the decision focuses almost exclusively in the custody of the child. For this reason, the resolution of custody and visitation can be much more simple for the parents who are not married.

If out-of-court parents without getting married is not coming to an agreement on child custody and visitation, the matter will have to be resolved before the court of the familiar.

Particularly when making decisions involving unmarried parents, the paramount consideration of the court will be to identify the “primary caretaker” of the child. To see a listing of factors that the court considers when determining the child’s “primary caretaker” of a child, see Who gets the custody?

The custody to third party

In some cases, people who are not the parents of a minor child may apply for custody of the child; including the extended family, grandparents, uncles(as) and to close friends. Some states label this situation as custody “non-paternal(maternal)” or “third person”. (Note: other states refer to the purpose of the third party to obtain custody of a minor child, as to obtain “guardianship”).

Whatever the label, most states set specific procedures that they must follow the people (who are not parents) who want custody of a minor. The process usually begins when the people who want custody sent a document called a “petition for custody, non-parental” (or similar name) to the court, which needed the relationship between the person and the child, the state of the child’s parents (if they live, die, or if their whereabouts is unknown), and the reasons why the person is looking for (and for which he should be granted) custody. Generally, you must also deliver a copy of this request to the child’s parents, if they are still alive and knows his whereabouts.