Child Custody: How Courts Determine The Custody Of Kids

Child custody laws have changed dramatically over the last one-hundred-fifty years. At one time, children were the property of their father, and mothers were not allowed to have contact with children if the parents divorced. Even if the children were infants that required their mother's milk, a divorce would sever all ties between mother and child. Attitudes changed, and it soon became popular to believe that children needed mothering and that fathers were not that necessary. Attitudes changed again, about forty or fifty years ago, to reflect that children needed both parents. Now, the child custody laws reflect individual states' views on parenting and custody. Here is how most courts determine custody, and how your child custody attorney may help you sway the court's opinions in your favor.

Equal Custody

Unless there is a substantial reason for one parent having more custody than the other, family courts in most states try to split physical and legal custody equally between both parents. In some states, the custody situation is very different in that only the parent with a job may have custody, leaving the parent who was a stay-at-home provider of child care to have no custody at all until that parent gets a job. In a few other states, only mothers can get custody unless the fathers can prove that they can be fully involved parents/co-parents.

While the law often favors mothers for physical custody and placement, the courts still try to provide some time for fathers to have almost equal placement and time with the children. Additionally, legal custody, which is the right of a parent to determine major life and death choices for his/her children, is split equally so that no one parent trumps the legal custody rights of the other. Only in situations where one parent is either declared "unfit" or having a significant mental health issue is full physical and legal custody awarded to the other parent.

Children as "Property"

Sadly, there are still a few backwards states that view children as "property of the father." Even in these states, however, children as property also means that if the children are taken from parental care and homes, they become "property of the state," or "wards of the state." In those states, it is very difficult to get equal custody for both parents, and/or return children to parents if the children were removed for some reason from their parents' home.

Fighting for Custody

Fighting for custody may be a long, hard battle. Some parents falsify reports and information to make other parents look bad. Be prepared and unsurprised by this if your ex tries this tactic. Also, your lawyer can help disprove allegations and protect your parental rights in court. If you expect an uphill battle in your home state for custody, do not fight it without a lawyer's help.