Wednesday, September 20, 2006

#9 Child Custody Basics

By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA
Do you need help now? Call 810 235-1970 !

Child Custody Basics

When parents divorce, the divorce judgement will specify with whom the divorcing couple's children will live (and circumstances under which the other parent will visit with the children).

Often, parents work out these arrangements between themselves, either completely voluntarily or with the assistance of their attorneys , pastor, or a mediator. When they are unable to reach a decision, however, or when unmarried parents are unable to agree on who will have custody of their child, the court may intervene and make a decision based on the child's best interests.

In most situations, physical custody is awarded to one parent with whom the child will live most of the time. Often, however, the custodial parent shares "legal custody" of the child with the non-custodial parent. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.

Some parents have chosen a joint-custody arrangement in which the child spends an approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake.

Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.

When the child's parents are unmarried the mother often is awarded sole physical custody unless the father takes action to be awarded custody.

In deciding who will have custody, the courts consider various factors. The overriding consideration is always the child's best interests, although that can be hard to determine. Often, the main factor is which parent has been the child's "primary caretaker" (more on this below). If the children are old enough, the courts will take their preference into account in making a custody decision.

A party involved in a child custody matter should become acquainted with the Child Custody Act of 1970, and study and be prepared to give their reasons for wanting custody pursuant to the following factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child;

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and continue the education and raising of the child in his or her religion or creed, if any;

( c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other marital needs;

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity;

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes;

(f) The moral fitness of the parties involved;

(g) The mental and physical health of the parties involved;

(h) The home, school, and community record of the child;

(I) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference;

(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, or the child and the parents;

(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child; and

(l) Any other factor considered by the court to be relevant to a particular child custody dispute.
When there are custody disputes, the parents must be advised as to joint custody:

(1) At the request of either parent, the court shall consider an award of joint custody, and shall state why joint custody may or may not be consider by the court. The court shall determine whether joint custody is in the best interest of the child by following factors:

(a) The factors enumerated above.

(b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.

(2) If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, that clear and convincing evidence affecting the welfare of the child dictates otherwise.

(3) That if the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.

(4) During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.

(5) If there is a dispute regarding residence, the court shall state the basis for a residency award on the record or in writing.

(6) Joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses, even during a period when the child is not residing in the home of the parent receiving support.

In addition to the above factors, there is a preference for the parent who can demonstrate that he or she was a child's primary caretaker during the course of the marriage.

In custody cases, the "primary caretaker" factor became important as psychologists began to stress the importance of the bond between a child and his or her primary caretaker. This emotional bond is said to be important to the child's successful passage through his or her developmental stages, and psychologists strongly encourage the continuation of the "primary caretaker"-child relationship after divorce, as being vital to the child's psychological stability.

When determining which parent has been the primary caretaker, courts focus on direct care-taking responsibilities, such as:
1. Bathing, grooming, and dressing;
2. Meal planning and preparation;
3. Purchasing clothes and laundry responsibilities;
4. Health care arrangements;
5. Fostering participation in extracurricular activities; and
6. Teaching of reading, writing, and math skills.

Other factors may be considered as important when determining primary caretaker status. Even such things as exposure to second-hand smoke and volunterism in the child's school have been considered in a primary caretaker analysis. While, in the past, the primary caretaker preference seemed just another way to award custody to mothers, as more and more men share parenting responsibilities, this preference does not necessarily favor mothers. When it is apparent that both parents have equally shared parenting responsibilities, courts once again will fall back on the "best interest" standard in determining custody.

By Attorney Terry Ray Bankert 810 235-1970

Divorce, Custody, Child Support, Alimony, Child Neglect, Flint Michigan USA Lawyer.
Articles on Divorce and Lawyers in Flint, Genesee County Michigan USA

Do you need help now? Call 810 235-1970 !

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