Child Custody

Child Custody

Basics

There are two forms of child custody generally speaking: Legal custody and physical custody. Legal custody has to do with decision making around the minor child. For example, what school does the child attend; what religious activities the child partakes in and extra-curricular activities and major health decisions.

Physical custody means that a parent has a right to have a child live with him or her. Courts used to use words like sole legal custody to refer to parents who have most of the physical custody, however now we are seeing a shift towards terms like “primary physical custody” which are less adversarial. A parent can have primary physical custody when he or she has more than 50% custody over the child. However, it can also refer to a parent who has 90% custody over their child. The other parent would have rights of visitation.

What factors go into determining which parent has custody over the child?

There are a whole host of factors the court considers in determining which parent has primary custody over a child, but the threshold question is always, what is in the best interests of the child. Parents often make the mistake of thinking that the court is going to focus on which parent lives closer to school or has more time-off from work, etc. However, the court is not interested in convenience to the parents; the court is going to make a decision based on the best interests of the child.

Frequently Asked Questions

Once the court has made a custody determination and I think it is unfair, can I change it or appeal it?

Depends. If a child custody order was made as part of a restraining order or as part of a request for order, then you can likely change it, by going to trial. Trial is an expensive ordeal and may not yield the results you desire however. The same judge that made the temporary order for child custody is going to be the Judge on the trial (in most cases); therefore chances of him or her changing their mind is slim.

A better strategy might be to consult with an attorney to determine why the custody order went against you. Based on the facts and circumstances, you may have better luck waiting for a change in circumstances and going back to court to modify the order in the future.

If I have primary custody of my child and I am planning on moving to another state or country, can I take my child with me?

Depends. Your child custody order likely does not give you permission to take your child to another state or country. You will generally first have to file and request for a move-away order and obtain the court’s permission to take your child outside the state or country. These are not easy orders to obtain generally, because it means that the other parent will be deprived of significant visitation time with their child (assuming they have visitation). Please review our Move-Away Orders page for more information.

Will the court take my child’s preference into consideration as far as which parent he or she wants to remain with in determining custody?

Depends on how old the child is. Generally speaking, the minor child must be at least fourteen years old for the court to take the child’s preferences into consideration.

The aforementioned is not intended to be legal advice. Contact Dream Law attorney Sanjay A. Paul, Esq. for a consultation on the facts of your case.

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