Area of Law:
Since child custody laws are regulated by the individual states, the laws can vary significantly from state to state. However, there are some general concepts that anyone with children should be aware of. Lawyers.com is a great resource to use because it contains a database of links to the individual laws of each state.
Types of Custody
Legal Custody refers to the right and responsibility of a parent to make decisions relating to the health, education, and general welfare of his or her child. This means that the parent who has legal custody will choose where the child goes to school, what religion he or she is exposed to, and any and all medical decisions.
Some unmarried couples have joint legal custody over their children. This means that both parents to whom the joint legal custody refers have the legal authority to make such decisions.
Physical Custody refers mostly to the right and responsibility to choose where the child will live. The parent who has physical custody is responsible for the day to day care of the child; however, it should be noted that the non-custodial parent is also responsible for providing financial support, which may be judicially mandated in a courtroom. The non-custodial parent will also have visitation rights.
Joint physical custody is a situation where the children maintain two residences – one with each parent. There is generally a close to equal division of time that the child spends with each parent, but sometimes careers and other considerations make that impractical.
One of the most common conflicts pertaining to child custody occurs when one parent wants to relocate with the child. Often the custodial parent will have a career opportunity or a new relationship that will lead him or her to a distant location. There are several legal considerations to take into account when this happens.
First and foremost, the “best interest of the child” standard always applies in any custodial proceedings, and really in any dispute that will affect the welfare of a child. The burden is always on the relocating parent to show that it is in the best interest of the child to make the move along with him or her.
There are many things that the court considers in addition to the “best interest of the child” standard. If the child is old enough and mature enough to comprehend the decision, his or her opinion will be taken into account. It is also more likely for the court to approve of a move over a shorter distance than a longer one. Another obvious consideration is the actual motivation for the move. If the parent is moving because of a great career opportunity, it is more likely that the court will approve than if the move is simply to suit the relocating parent’s new romantic relationship.
A relocating parent should do everything that he or she can to accommodate the non-relocating parent. Courts do not look favorably upon deceit and the withholding of information in situations like this. Because the court's primary concern is for the child, the relocating parent needs to have a plan for the child in his or her proposed location, involving things like schools, day care, and most importantly a means to maintain contact with the non-relocating parent.
Due to the nature of child custody battles, there is never a general answer that is applicable to every situation. There are many free, state resources that can help you educate yourself about the best way to approach your particular circumstances. Click here to find a child custody attorney in your area.