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Child Custody - Frequently Answered Questions

The questions are frequently asked, "Can I get custody of my child?"; or "How can I stop my wife/husband from getting custody of my child?" It is impossible to answer such a question in a purely electronic exchange and, for the reasons set forth below, very difficult even after counseling a client in the attorney's office. This FAQ is intended to give general information about the child custody disputes and how they are resolved. If you are involved in such a matter, you are strongly urged to consult an attorney who specializes in family law. Do not rely on friends, "war stories" or electronic media for advice. Only an attorney who is admitted to practice in your jurisdiction can properly advise you.


What law applies?

Child custody determinations are made by state courts, and each state will generally apply its own law in making a child-custody determination. Often parents reside in different states, or in different states from the child or children. In that case, the courts of the state where the child has resided for more than six months will generally have exclusive jurisdiction to make a custody determination, and a child-custody dispute brought in any other state can usually be required to be dismissed. (However, a state which have previously made a child-custody determination will normally have continuing jurisdiction over the parties' children, as long as one of the parties still lives in that state.) Despite frequent disputes about jurisdictional matters, the substantive law of child custody is surprisingly uniform from state to state. That is so because all states follow the "best interest of the child" standard. More about that standard later.

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What is a custody dispute about?

The essence of a custody dispute is that, when divorcing parents are unable to agree on arrangements for the custody of their child, the court must make a decision for them. In most cases, parents who cannot settle their differences cannot be counted on to make joint decisions regarding their children's welfare. Accordingly, there needs to be one parent who will have exclusive authority to make key welfare (medical care, schooling, etc.) decisions in the event that they need to be made, even if the other parent would oppose or wish frustrate such decisions. That is called "legal custody" - the right to make legally binding decisions affecting the child. Courts are also frequently concerned with "physical custody" - where the child will live. Generally, in court-decided custody determinations, physical and legal custody will be granted to the same parent.

If the parties are able to cooperate with regard to their children's upbringing, then they can usually make an agreement regarding custody. The private resolution of disputes over custody (and all other matters in a matrimonial dispute) and visitation is strongly favored not only as a matter of public policy but also because there simply are not enough judicial resources to go around. Such an agreement may provide for sole, shared or joint physical or legal custody, or just about any combination. In fact, if the parties agree, the number of possible variations in custody arrangements is limited solely by the imaginations of their attorneys. As noted above, however, joint or shared custody arrangements are generally inappropriate where the level of discord between the parties renders joint decision-making impractical. For that reason, most courts will not award joint custody in a contested-custody dispute. In a child custody dispute, there are rarely winners, frequently everyone is a loser, and the biggest losers are often the children.

Some 95%+ of all matrimonial disputes are settled before trial. A settlement is generally memorialized in an agreement called a separation agreement. Agreements made between two parties with respect to child custody, visitation and support, whether in a separation agreement or a stipulation on the record in court, are generally binding on them. However, most states take the position that such agreements are not binding on the courts if the court finds them not to be in the child's best interest. Accordingly, despite an apparently binding agreement for joint custody or for other arrangements, modification is possible in some cases when the agreement no longer is in the child's best interest. Modification of custody is discussed below.

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What factors does the court take into account in awarding custody?

As noted above, in substantially all cases, no single factor will be dispositive, and the court will consider every factor and do what is, in all respects, in the best interest of the child. This determination is necessarily very fact-dependent. The court will consider such factors as the age and health of each party, but it will generally give great weight to the child's relationship with each party, which party has demonstrated greater responsibility toward the child, and who the child's closer "psychological" parent may be. Such factors as who takes the children to school, attends teacher conferences, arranges play dates, takes the children to doctor visits, etc. are likely to be persuasive. The fact that one party is frequently absent from home, or has an unpredictable travel schedule, may make a difference. Courts consider such factors as: keeping siblings together, strength of bonding, continuing the present arrangement when the child is happy and well-adjusted, moral character, emotional stability, duration and depth of desire for custody, ability to provide personal rather than surrogate care, any impairment to function as a parent, reasons for past relinquishment, religious compatibility, kinship and financial condition. But no one factor is dispositive. As noted above, the court will weigh all factors, including the child's preference (see below), and determine what will best serve the child's interest.

In some cases the court will appoint a guardian or attorney for the children, to make sure that their interests are represented. The appointee will interview the children at length, and generally interview their parents as well, and make a report to the court on his or her views regarding custody.

In yet other cases, a psychiatrist or psychologist will be appointed by the court to give a report and/or make a recommendation. The mental-health professional will generally have the opportunity to devote far more time to the evaluation than the court could. In some cases, each side will retain his or her own experts.

Disputed custody contests can be extremely expensive. It is not unheard of for each side to spend in excess of $50,000 on counsel fees and experts. Woody Allen and Mia Farrow spent over $2,000,000 between them.

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What is the "tender years" doctrine?

Until fairly recently, there was a virtually irrebuttable presumption that a child of "tender years" belonged with its mother. That presumption has long since gone by the legal wayside, and most states now provide either by statute or common law that neither parent has a prima facie right to custody. However, although no longer part of the law, it is a concept that seems to be hard to kill, especially, at least in the experience of some family lawyers, in cases being decided by some older male judges. (Similarly, some older male judges may be prejudiced against mothers who are perceived to be libertines.) Parents seeking custody need to be mindful of the possible prejudices of judges in such matters. It is the experience of this office that, while the vast majority of fathers do not contest custody, in those cases that are contested and litigated through trial, fathers win more than half of the time.

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What if my child wants to live with me?

The wishes of a child are never dispositive by themselves. Courts are "wise" to the possibilities for manipulation of children, or that children will not know (or make decisions based on) what is best for them. For this reason, the wishes of a young child (under 10-11 or so) will be accorded very little weight in most custody determinations. The wishes of a young teenager (say 12-14) will generally be evaluated along with a deeper exploration by the court of why the child holds the particular preference, and will be accorded considerable weight if rational and apparently not the product of a "bribe" - but again, those wishes will not be dispositive if the court finds them not to be in the child's best interest. The wishes of an almost-emancipated child (14+) are likely to be accorded great weight for a number or reasons, not the least of which is the fact that a child of that age is capable of picking himself up and going wherever he wants.

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How do I get custody changed from my ex to me (or retain custody)?

While the "best interest" standard is always applied to any custody dispute, a different issue comes into play with a custody modification, as opposed to an original custody determination. In a modification, the court is forced to weigh the benefit, if any, of the proposed change against the disruption caused by a change in custody. Studies have shown that changes in custody are extremely disturbing to children and, for that reason, courts are reluctant to make changes unless the proposed new arrangements are head-and-shoulders better than the old ones. So a parent seeking a change in custody faces the additional hurdle that an apparently stable and functional custody arrangement, even if it would not have been the best decision originally, will be left intact, rather than disrupt the child's stability. Matrimonial attorneys frequently meet with parents seeking a modification of custody based on the non-custodial parent's frustration with visitation or other arrangements, or sometimes because of the non-custodial parent's disapproval of the custodial parent's lifestyle, parenting style, friends, paramours or living arrangements. Rarely do these matters rise to the level that would justify a change in custody (at least in the mind of a court). However, as noted above, all such determinations depend on facts and the court's perception of them. That perception may be very different from the perception of the angry, frustrated non-custodial parent.

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Help! My ex is planning to relocate to a remote state with the kids.

In today's mobile society, relocation of the custodial parent to a remote state (or even foreign country) is a fairly common occurrence. Many non-custodial parents live in abject fear that their exes will depart with the kids for parts unknown, and many custodial parents feel they need to make a clean break with their exes or to move to a place where their employment prospects will be brighter. There are no good answers. The national trend is tending toward permitting more freedom in relocation. Most states (including Connecticut) will apply a best-interests test to such a proposed relocation: if the relocation is in the best interest of the children, then the relocation will be permitted. Note that this standard generally means that there must be some demonstrable benefit for the child in the relocation, not just for the custodial parent, and that benefit must outweigh the detriment associated with loss of contact with the non-custodial parent.

For example, New York, until recently, all but forbade custodial relocation unless the custodial parent could make a showing of "exceptional circumstances." That standard was greatly liberalized in 1996, when the Court of Appeals held that,

...in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests.

Tropea v. Tropea, 87 N.Y.2d 727, 740-41, 665 N.E.2d 145, 642 N.Y.S.2d 575 (1996).

Effective October 1, 2006, Connecticut enacted a set of statutory guidelines regarding relocation of custodial parents. The revised statute requires proof by a preponderance of the evidence that the relocation is for a legitimate purpose, that the proposed location in reasonable in light of that purpose, and that the relocation is in the best interest of the child. The statute codifies several factors that a court will consider in determining whether the best interests of the child are met. The act provides as follows:

(a) In any proceeding before the Superior Court arising after the entry of a judgment awarding custody of a minor child and involving the relocation of either parent with the child, where such relocation would have a significant impact on an existing parenting plan, the relocating parent shall bear the burden of proving, by a preponderance of the evidence, that (1) the relocation is for a legitimate purpose, (2) the proposed location is reasonable in light of such purpose, and (3) the relocation is in the best interests of the child.

(b) In determining whether to approve the relocation of the child under subsection (a) of this section, the court shall consider, but such consideration shall not be limited to: (1) Each parent's reasons for seeking or opposing the relocation; (2) the quality of the relationships between the child and each parent; (3) the impact of the relocation on the quantity and the quality of the child's future contact with the nonrelocating parent; (4) the degree to which the relocating parent's and the child's life may be enhanced economically, emotionally and educationally by the relocation; and (5) the feasibility of preserving the relationship between the nonrelocating parent and the child through suitable visitation arrangements.

Often relocation will be permitted conditioned on changes in visitation or some financial consideration to the non-custodial parent to offset the increased costs of contact with the children. As in all custody disputes, the results of a relocation matter are heavily fact-dependent, and the outcome is rarely a foregone conclusion.

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Do I need a lawyer?

Yes. Child custody disputes are complex and often depend on factors that a layman would not consider. Moreover, the parent's closeness to the subject matter makes an objective presentation of evidence nearly impossible. If you cannot afford a lawyer, often there are resources available to you at state expense. Check with your local Legal Services Corporation unit, Legal Aid Society or the court clerk.

Because the law of child custody varies from state to state, a person who may have valuable rights affected by such laws should consult with an attorney who specializes in such matters. The foregoing should not be construed as legal advice, which can only be given by an attorney who is admitted to practice in your state, to whom you pay a fee, and who in return undertakes to protect your rights and to explain your responsibilities.

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