Child Custody Law

If a divorcing couple has children, the divorce must take child custody and support into account.

Custody agreement
Custody of a child refers to the obligation to control, care for, supervise and educate that child. In all states, courts have the power to enter both temporary and permanent custody orders.

There are consequences of being the non-custodial parent, such as not being able to take the child out of state without permission, nor the ability to make parental decisions about the child's education, religious training or medical care.

Best interest of the child
The standard courts use to determine custody is what is in the best interest of the child. To simplify the nature of court decisions, many states have differentiated "physical custody," which refers to the rights of the parent with whom the child lives, from "legal custody," which refers to the parent's right to make decisions.

Some state statutes assume a joint custody award unless evidence is presented that persuades the court that the best interest of the child would be served with a different arrangement.

Courts may consider the following factors in determining the best interest of the child:

• The primary caretaker of the child within the marital relationship
• The child's preference for the custodial parent
• Gender of the child (some studies have shown that children fare better with a same-sex parent after divorce)
• The quality of the child/parent relationship
• The physical conditions that will be provided for the child
• The willingness of a new spouse to accept the child
• Physical or mental handicaps that affect the child's well-being
• Drug or alcohol addiction
• Household stability

Alleged immoral sexual conduct on the part of a parent leads to a great deal of custody litigation and is considered relevant, if not a deciding factor, in the divorce proceedings of some states.

Courts typically will consider the homosexuality of a parent in resolving custody matters. Despite increasing social tolerance of homosexuality in recent years, some courts still deny custody to a homosexual parent.

However, several states have held that sexual orientation alone is an insufficient ground for denying custody.