Family Law Attorney

Below is a list of frequently mentioned and asked terms in child custody cases. Please note that the information provided on this website does not constitute legal advice, nor does it create attorney-client relationship. Each case is different, if you need legal advice please seek an attorney.

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Child Custody FAQ

 

• Parent’s Constitutional Right to Relationship with their Child.
   

  • Parents have a constitutional right to have and maintain a relationship with their child. It is assumed that in most cases a child will benefit from having the love and support of both their parents, whenever possible. This right is not absolute, however, and a parent can lose the right to see or care for their child if the court believes that a parent is a sufficiently negative influence on the child or threatens their well-being in some other way. The court often begins with the assumption that a parent should be a part of the child’s life, but are ultimately more concerned with the best interest of the child.

 

• Physical vs. Legal Custody.
   

  • Custody of a child comes in two types: physical and legal. “Physical custody” is the right to live with the child and provide routine care for them. “Legal custody” is the right to make decisions on behalf of the child, such as where they should attend school or what medical care they should receive. Both legal and physical custody affect important aspects of the child’s life and should be carefully considered before litigating custody or entering into an agreement with the other parent.

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• Joint vs. Sole Custody.
   

  • A court may order that parents share the legal rights of custody, as in a joint custody arrangement, or that one parent be given all or most of the rights of custody in a sole custody arrangement. This will depend on the circumstances of each parent and what the court believes will provide the best environment and experience for the child and their development. Even in cases where sole custody is awarded to one party, the other party may still have the right to spend time with the child.  The parent without sole custody, however, may not have the opportunity to make important decisions regarding the child’s life, or may not be able to care for the child for an extended period of time, such as living together.

 

• Grounds for Custody.
   

  • The ultimate point the court is concerned with in determining custody is the best interest of the child. Even if the parents agree on what arrangement they believe is best, the court must believe that such an arrangement is, in fact, the best thing for the child. What the parents believe to be good for the child is often good evidence that is taken into account, but the court is not bound by any agreement between the parents. Determining the best interest of a child is a complex question that will depend on many different facts that vary from case to case. Some factors that frequently impact this determination, however, include the following:

    • Parental fitness.

    • The relationship between the parents.

    • The child’s relationship to parents and other supporting figures in their life.

    • The environment and institutions the child has become accustomed to and involved in.

    • The wishes of the parents, and possibly the wishes of the child.
       

• Child’s involvement in custody litigation
   

  • Whether or not a child will become involved in the custody proceedings depends on the specific facts of a case and will vary greatly from case to case. The parties may sometimes agree to limit or exclude the child’s involvement in the proceedings in order to minimize their exposure to conflict and potentially traumatic information or experiences. The child may themselves be able to testify as to how they believe custody should be awarded, or to some of the issues that go into the determination of custody. There is no minimum age or other objective criteria for determining when a child is capable of making a choice regarding custody. Instead, the court looks to whether the child comprehends the decision and whether they are able to develop their preference based on sound reasoning. If the court believes that the child’s testimony is important, but should not occur in open court for some reason, it may be possible to have the child testify in a more private setting. This type of special arrangement is atypical and must have sufficiently convincing reasons for why it is necessary or justified.

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• Can I Move To Another State With My Kids During Divorce? 
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  • The answer to this question depends on the specifics of your case, and you should only rely on an answer given to you by a knowledgeable attorney who knows the facts of your unique case. However, below are a number of factors that are likely to affect the answer to this question, as well as a few guidelines that generally hold true:
     

    • What is the current custody arrangement? If there is a court order already in effect, there is a good chance that it prohibits anyone from removing the children from the state without a new order being obtained. Parents who have sole custody of their children may still have obligations to make the children available to the non-custodial parent for visitation, which is greatly complicated by a move out of state. Therefore you should carefully read the terms of any orders that are currently in place (ideally with the advice and assistance of an attorney) and, if necessary, return to court to obtain permission to relocate with your children.
       

    • Do you anticipate future litigation? Even if there is no court order currently in place, it is not difficult for a parent who remained in Nebraska to haul you back to the state for court. Due to the jurisdictional problem discussed above, moving to another state can be risky even when there is no court order in place. Consider: how likely it is that the other parent will take the issue of removal seriously enough that they would initiate a court case about it? If you believe there is a reasonable possibility they might take that step, moving may not be worth the risk, and you may want to obtain some type of agreement or court order prior to moving.
       

    • What will a court consider in deciding on removal? If the court is asked to decide whether to authorize removal (a type of custody decision), it will be looking at two main questions. First, is the parenting seeking to leave doing it for a legitimate reason, such as pursuing a career opportunity, or are they just trying to spite the other parent. Second, if there is a legitimate reason for moving, the court looks at the best interest of the kids. There is no single factor that determines how a court will decide, but there are a number factors which are commonly used, including:
       

      • (a) the emotional, physical, and developmental needs of the child;

      • (b) the child’s preferences (if sufficiently mature to express such preferences);

      • (c) whether the moving parent’s career will be enhanced;

      • (d) how the move would affect the child’s living conditions;

      • (e) the educational opportunities and advantages of moving;

      • (f) the relationship between the child and each parent;

      • (g) the child’s ties to each community, including other family members; and

      • (h) whether moving would increase hostilities between the parents.
         

    • When will the court allow me to move? Even if all of these factors support removal, it is necessary to convince the court that these factors override the other parent’s rights to be involved in the children’s lives. It can be difficult to make such a showing, especially depending on the age and development of the kids. It also takes time to gather evidence and proceed through the court system. If the other parent puts up a fight, it can be a lengthy process to get to trial, where you are able to tell the full story of why the kids should be with you and why you should be allowed to move with them. Generally, it is only after trial (or settlement) that the court has a full picture of what is going on and how to decide the case. Therefore, a parent who has all the factors (above) in their favor may still have to wait a considerable amount of time to get the authorization for removal. A skilled family law attorney can help expedite this process and ensure the best chance for success, but ultimately litigation is not a short process.
       

  • It is recommended that you discuss with your attorneys before making that decision.