Child custody agreements are an issue that face both married and unmarried couples. There are two types of child custody: legal custody and residential custody. Legal custody refers to which parent has the legal right to make decisions concerning a child’s health, education and general welfare. Residential custody is an agreement that establishes where a child resides for the majority of the time.
Generally, courts give custody to both parents, in what is referred to as joint custody, unless a parent cannot be found, has drug or alcohol issues or has legal issues, such as being presently incarcerated or having been convicted of domestic violence. In a joint custody case, a court decides who gets residential custody.
Which parent acquires residential custody depends on a variety of factors, including the age of the child, the child’s gender, the child’s mental and/or physical state, the impact custody will have on the child’s community and school and the relationship the child has with his or her parents. If a child is over 14, his or her opinion is taken into consideration as to where he or she would like to live.
In rare circumstances, a court may award custody to someone other than the parents, such as a grandparent or other family member. This tends to occur most often when a child has been living with someone else other than the parents due to estrangement.
A court can, in theory, award joint residential custody, but generally does not due to the amount of moving a child would have to do. In general, in an effort to provide a stable environment for the child, one parent gets primary custody and the other parent gets visitation.
Courts do not favor one parent over the other, but instead both parents have equal rights under the law. However, if the parents were not married, then a court will order DNA testing to establish paternity. The court may establish a man as the child’s father as a matter of law, if the man professes it to be so, and the mother does not contest.
Child custody cases can be very emotional and complicated. If you or someone you know is involved in such a case or is looking to have his or her custodial rights restored, an experienced family law attorney can advise you as to your rights as it relates to your particular case.
Source: Legal Aid Network of Kentucky, “What is child custody?,” accessed Jan. 12, 2017