Whether a family is establishing custody and parenting time through divorce, paternity action or separate motion, a judge will look at the child’s best interest when making decisions. To determine child custody, the court will assess who should be responsible for the child’s care on a daily basis, as well as who may make legal decisions on the child’s behalf. The court may also make decisions regarding whether a parent, grandparent, or other family member has a right to visit with the child and at what intervals. At the end of a child custody case, the court will issue a legally binding written decision.
There are two types of custody of a child:
- Physical custody
- Legal custody
Physical custody can be best described as having control over the routine of daily care and control and residence of a child. Legal custody is defined as the right to determine the child’s upbringing including education, healthcare, and religious training. Either type of custody can be awarded solely to one parent or jointly to both. As to legal custody there is a presumption that joint legal custody is in the best interest of the child. There is no presumption regarding physical custody. A court will look at 13 factors, none of which has any more importance than another, when making a determination whether sole or joint physical custody is appropriate.
After custody has been initially determined and awarded, it can be modified upon changed circumstances of the parties or the child if the modification serves the best interest of the child. Additionally, any modification that seeks to change a child’s primary residence will only be awarded upon a showing that the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development, and that the harm of the modification is outweighed by the advantage.
Endangerment is very hard to prove. The factors the court is likely to consider are:
- Physical abuse of the child
- Exposure to criminal activity including drug use and prostitution
To prove endangerment and successfully change a child’s primary residence is a two-step process. First, the party requesting that the child be removed from the present residence, must schedule a hearing with the court and serve a motion requesting the change. The motion must be accompanied by affidavits that establish a prima facie case of endangerment. That means that the affidavits must show, if everything in them is believed to be true, that the child is endangered. Affidavits that speak only to a child’s wishes (such as a desire to relocate, dissatisfaction with a parent’s new significant other or another change in circumstances not rising to the level of endangerment), will not be sufficient to obtain an evidentiary hearing on the issue, and the court will summarily deny the motion for modification. If the affidavits are determined to show a prima facie case of endangerment, the court will schedule an evidentiary hearing. It is likely that the court will also appoint a guardian ad litem for the child; that guardian will make recommendations as to custody and parenting time.
As you can see a modification of custody that changes the child’s primary residence can be a costly proceeding. It should only be undertaken when there is a very real concern that the child is in danger in their present circumstance. If there is a real concern it is important to hire an experienced attorney to represent you.
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