What Are The First Steps To Getting Sole Custody When We Weren’t Married?
If you’re going through a divorce and have children in common, you’ve probably heard the terms “joint custody” and “sole custody.” These phrases, however, are frequently misunderstood. In the Utah child custody can be “joint” (shared) or “sole” (awarded to just one parent). All custody decisions are made by the court and in the best interests of the child.
A parent with sole physical and legal custody has exclusive rights concerning the child. These custody arrangements are rare, and are usually limited to situations in which one parent has been deemed unfit or incapable of having any form of responsibility over a child — for example, due to drug addiction or evidence of child abuse.
In these sole custody situations, the child’s other parent (also known as the “non-custodial” parent) has neither physical nor legal custody rights, but may be entitled to periods of visitation with the child (though those visits may be supervised, especially in situations involving domestic violence or child abuse).
Difference Between Sole Legal and Sole Physical Custody
Even if you have sole custody, there are important distinctions between legal custody and physical custody explained below — as you could have sole physical custody of a child, but joint legal custody which you share with the other parent.
• Sole Legal Custody: One parent has the right and responsibility to make major decisions regarding the child’s welfare, including matters of education, medical care and emotional, moral and religious development.
• Sole Physical Custody: The child resides with and under the supervision of one parent, subject to reasonable visitation by the other parent, unless the court determines that such visitation would not be in the best interest of the child.
Benefit of Sole Custody
The benefit of sole physical and legal custody is that the child lives with you and you don’t need to consult with the other parent to make important decisions about the child’s life, such as educational, medical and religious choices. Being granted sole custody does not impact the other parent’s right to visitation.
Sole Custody and Relocating
Having sole custody doesn’t necessarily mean that you get to relocate without the court’s permission. If the other parent has any visitation rights, relocation jeopardizes his/her rights and therefore relocation is an issue that has to be addressed by the court.
An Example of Sole Custody
Example: Mother and Father have divorced due to Father’s substance abuse and addiction. Mother seeks and is granted sole custody of Child. This means that Mother alone has legal authority to decide key issues related to Child’s upbringing, and Child will live exclusively with Mother. Father may be entitled to visitation with Child.
When Should I Seek Sole Custody?
The clearest reason to ask for sole custody is to protect your child from physical harm, especially if the other parent has a history of any of the following issues:
• ABUSE: If a parent has assaulted or sexually abused the other parent or any child, this presents an obvious danger to their child.
• NEGLECT: If a parent has previously neglected the child, this neglect could continue in the future. Neglect is the failure to provide a child with necessary medical care, dental care, supervision, food, clothing, shelter or other safeguards to protect the child’s well-being.
• SUBSTANCE ABUSE: A parent who abuses drugs or alcohol presents a danger to the child. The altered mental state that occurs as a result of substance abuse prohibits the parent from being able to properly care for the child.
• MENTAL ILLNESS: A child should be protected from a parent who is mentally unstable and exhibits irrational and unpredictable behavior. For example, a child should never be left with a suicidal parent.
There are also reasons to obtain sole custody beyond protecting the child physically:
• ABANDONMENT: Sometimes parents can’t or won’t take care of their child. If a parent has shown little interest in their child and has failed to maintain contact with them, you may want sole custody so the parent can’t resurface years later to exercise custody rights as a virtual stranger.
• INCARCERATION: If a parent is imprisoned, they cannot provide a home or care for the child. In this case, you may want to seek sole custody, and the other parent can have visits with the child after their release from prison, if appropriate. Don’t feel obligated to take your child to visit a parent in prison if you feel it may harm the child emotionally.
• RELOCATION: If a parent plans to move out of the state or country, it may best for one parent to have sole custody.
What Are My Chances Of Getting Sole Custody?
The chances of getting sole custody vary greatly and depend on the circumstances of your case. Most courts start with an assumption that children benefit from spending time with both parents. However, they know joint custody is not appropriate in every situation. If you and the other parent agree on sole custody, the judge will typically approve your agreement. If the other parent does not contest your request for sole custody, the lack of interest will typically compel a judge to award sole custody. If the other parent decides to fight for custody, you may face a long battle. Be prepared to show why sole custody would be in the child’s best interest and provide proof of any allegations you make.
A mother who gives birth while unmarried automatically has sole custody of her child until a court rules otherwise or until she and the father officially acknowledge his parenthood. Also, a child’s only living parent usually has sole custody. Otherwise, your best option for getting full child custody without a trial is to reach an agreement with the other parent. If you decide together that your child would benefit from sole custody, write this in your custody agreement. Include details about any decisions the noncustodial parent can make for your child, when your child will spend time with that parent and how you’ll support their relationship.
Married or not, one thing never changes—when you split up, it’s vital for your kids’ current and future well-being that you try to reach a compromise about issues of custody, visitation, and support. Doing this in a constructive, humane way may be a great challenge. But, your ability to get along civilly if not cheerfully is the biggest gift you can give your children. Sometimes this can be accomplished through open discussions between the two of you. In other situations it will require counseling, therapy, or mediation. No matter how scary or messy breaking up can sometimes be, as long as you are each determined to avoid a contested court battle and willing to put your egos aside in an effort to work together in the best interests of your child, you should be able to work out even the toughest parenting issues.
If you can’t reach an early compromise on the issues of custody (who has legal authority over the child and where does the child live), visitation (how often and under what conditions does the noncustodial parent spend time with the child), and child support (whether the noncustodial parent contributes anything to the costs of raising the child), you will have to submit your dispute to the court system. While the specific rules for child custody and visitation differ from state to state, here is a general overview.
The Rights of Unmarried Parents Who Are Both Legal Parents
If both of you are legal parents of the child—either because you are both biological parents, because you have jointly adopted your child, or because the non-biological parent has been able to obtain a legally valid stepparent or second-parent adoption your child-related disputes will normally be handled in the same way as if you were a divorcing married couple. You may be required to attend mediation sessions or submit to an investigative process with county personnel. After listening to a county social worker’s report about each of your parenting abilities and home situations, the local family court judge will have great discretion to make child custody and visitation decisions.
The legal standard the judge will always follow is the “best interests of the child.” In most states you can propose your own custody and visitation arrangements. If the judge believes these to be sensible (and especially if you both agree to follow them), the court will often approve your proposal. But if the judge doesn’t agree with your proposal, the judge can substitute a modified or even completely different arrangement.
In many states the court will order that both legal parents retain custody (sometimes called joint, or shared, legal custody). This means each parent has equal authority over the key decisions in the child’s life (such as education and medical care), as well as a legal obligation to care for and support the child. Physical custody (where the child lives) is typically shared, with the child spending some days or weeks with one parent and living with the other parent at other times. In other states the court will award both parents “joint legal custody,” but stipulate that one parent will be the “primary physical custodian.” In still other states, it is far more common for the court to award one parent “primary physical custody,” while the other is given “reasonable rights of visitation.” But no matter what the legal description, the usual practical result is that the parent who isn’t the primary caretaker during the school week is granted liberal rights to spend weekends or other time with the child (called visitation) unless there is a strong reason why this would be detrimental to the child.
Like custody, you and your former partner can make visitation arrangements voluntarily. However, if your efforts are frustrated by the actions of the other parent (or someone else with physical custody of the child), you will have to file a court action and request that a judge order visitation.
In every state, both legal parents are required to support their children, regardless of whether they were married when the child was born. When it comes to supporting a child financially, if parental incomes are unequal or if one parent is shouldering most of the costs of taking care of the child the family law court will order the noncustodial parent to contribute a specified sum of money to the costs of childrearing (called child support), often by referring to published guidelines establishing minimum levels of support. The family law court will retain the right to modify this amount should parental incomes or the needs of the children change.
The amount of child support awarded will depend on how much each parent makes and spends on housing, health care, and other necessary child-related expenses, including dental bills and private school tuition. The monthly amount can vary widely, and each state has its own child support guidelines that are set by statute. We encourage you to learn what the court would likely order in your particular situation, so that you have an idea of where to start in the negotiation process. If support isn’t paid voluntarily, the parent with custody or someone acting on the child’s behalf (such as the welfare department) can sue the noncustodial parent to obtain a court order setting the amount of child support the noncustodial parent must pay. If the father doesn’t pay, but has the ability to do so, the district attorney can prosecute him under criminal laws. County jails are full of fathers who don’t take their support obligations seriously.
Parents who don’t live together have joint custody (also called shared custody) when they share the decision-making responsibilities for, and/or physical control and custody of, their children. Joint custody can exist if the parents are divorced, separated, or no longer cohabiting, or even if they never lived together. Joint custody may be:
• joint legal custody
• joint physical custody (where the children spend a significant portion of time with each parent), or
• joint legal and physical custody.
Joint Custody Arrangements
When parents share joint custody, they usually work out a schedule according to their work requirements, housing arrangements and the children’s needs. If the parents cannot agree on a schedule, the court will impose an arrangement. A common pattern is for children to split weeks between each parent’s house or apartment. Other joint physical custody arrangements include:
• alternating months, years, or six-month periods, or
• spending weekends and holidays with one parent, while spending weekdays with the other.
There is even a joint custody arrangement where the children remain in the family home and the parents take turns moving in and out, spending their out time in separate housing of their own. This is commonly called “bird’s nest custody” or “nesting.”
Pros and Cons of Joint Custody
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents. And it alleviates some of the burdens of parenting for each parent.
There are, of course, disadvantages:
• Children must be shuttled around.
• Parental noncooperation or ill will can have seriously negative effects on children.
• Maintaining two homes for the children can be expensive.
If you have a joint custody arrangement, maintain detailed and organized financial records of your expenses. Keep receipts for groceries, school and after-school activities, clothing and medical care. At some point, your ex may claim he or she has spent more money on the kids than you have, and a judge will appreciate your detailed records.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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