Five Important Things to Know About Child Custody

Do married parents have equal parental rights?

Yes. Married parents share equal parental rights over their child in the event of separation, unless a family court issues a child custody order to the contrary.

Many married parents separate before filing for divorce. While both parents share equal parental rights, either parent can file a petition and request that the court assign one parent as custodial and the other as non-custodial with visitation rights.


Who is more likely to get custody: a mother or a father?

Which parent is most likely to provide a safe and stable environment for the child? This is the central question the court will aim to answer.

In practice, child custody is always evolving. There used to be a policy called the “tender years” doctrine. The doctrine proposed that during the child’s tender years (age 4 and under), only the mother is allowed custody of the child; however, most states have thrown out the doctrine.

Some states go so far as to claim that it violates the Equal Protection clause, discriminating based on gender.

Does it still affect father’s rights?

In all of the places where the “tender years” doctrine has been abolished, joint custody legislation is the standard.


What should I know about visitation rights?

The first thing you should know, before we get into visitation rights, is that legal and physical custody are not the same thing.

Parents who share legal custody jointly contribute to important decisions regarding their children. However, a parent with joint legal custody may have physical custody of the child less than 50% of the time. Children live with the parent who has physical custody.

Physical custody is given to one parent (the custodial parent) and legal custody with visitation rights is given to the non-custodial parent. While in the past, it was more common to have joint physical custody arrangements, most modern custody arrangements assign primary physical custody to one parent.

For the non-custodial parent, there are extreme cases where visitation rights are denied, but the court must order a clear prohibition of visitation. Such cases are generally based on a history of emotional and/or physical abuse, or compromised mental and physical fitness to care for the child. Supervised visitation rights can also be issued by the court.

The court evaluates multiple factors in determining what is in the best interests of the child:

  • the child’s emotional bond with each parent
  • each parent’s ability to care for the child
  • each parent’s financial ability to provide for the child
  • the stability of each parent’s living situation (impacting the child’s social development)

If your child is old enough to express a preference, in some cases a court will take this into account, but is not always a deciding factor.


What are my rights as a father?

Most fathers don’t know their rights in a custody battle.

While in the past, the mother was once considered a greater source of emotional nurturance, the details of how well a father parents his child and seeks to increase their quality of life impact the outcome of the custody case. If the child has been taken by another family member while the father has custody, the father may call law enforcement and issue charges.


Fathers should seek a family lawyer to protect their rights and seek action against any violations of their joint custody arrangement.


What are parenting plans?

It is possible to negotiate visitation rights with your partner before the court makes a final decision on custody. You and your partner can submit a parenting plan that includes a specific visitation schedule – if approved by the court, the agreement can be incorporated into the custody order.


Bottom Line

If you are trying to obtain custody of your children, you will need a local attorney to assist you with this process. An attorney will prevent you from running into legal issues that could impact your custody bid and help you build your strongest case.

We understand how hard this is and we can help. Learn more about becoming a LegalShield member today.

This is not intended to be legal advice. Please contact a professional for further information.

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