Civil Rights

Custody

Custody and Visitation

With all divorces, the issue of custody and visitation must be addressed when children are involved. This is of course a difficult and stressful experience for any parent; however, where children are involved this matter must be decided by the Court when not agreed upon by the parties.

The test to determine what parent receives custody is called, “Best Interests of the Child Test”. Although the wording of the test may seem simple and straight forward, there are many factors in determining what the best interests of the child are. Some of the relevant factors and issues used in the test are living conditions, work conditions, ability to financially support and provide a safe environment for your child, history of violence, keeping siblings together, as well as the child’s preferences, which is taken into consideration based on the child’s age and ability to make any such choice.

Notwithstanding the multiple considerations in divorces, custody issues are the primary concern of any Court, and much of the time is spent in determining custody. Considering in divorces, this is left up for the Judge.

Visitation Rights

In the event the opposing spouse receives custody, establishing visitation rights is important to ensure you are able to participate in your child’s life or children’s lives. Visitation rights are also determined based on the factors of Best Interests of the Child. Considering children have the right to have both their parents in their life, custodial parents are not able to deny visitation by the other parent. Additionally, based on the changes of the factors levied to determine custody, visitation rights can be modified post divorce through filing Post Divorce Modifications.

The most important factor of visitation for non-custodial parents is having the Court Order that dictates visitation terms for the non-custodial parent. Only in very extreme circumstances can Court supervised visitation be ordered, and this generally occurs where there may be imminent danger to the child or health.

Post Divorce Proceedings

Custody/Visitation. Even though a parent may be awarded custody, this does not constitute a true permanent custody. Changes in circumstances that can affect the outcome of the “Best Interests of the Child” test can change visitation rights, or outright change custody, particularly if the custodial parent’s conditions negatively change.

Relocation. Most Court orders do not allow a parent with custody to move out of state. However, there are many situations where the parent with custody must leave the state for job or family, or other reasons. This will place strain on the right of the non-custodial parent for visitation. There is legal relief available to you in the event this should become an issue.

Child Support/Alimony. Upon completion of divorce proceedings, the Court Orders the distribution of assets, alimony, custody and support. Should one party fail to follow the Order of the Court, the party may be found in contempt of the Court’s Order. In this case, you have legal remedies available to you for the former spouses failure to follow the Court’s Order, whether that be failing to pay alimony, child support, or failing to follow Court Order for visitation rights.

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