Custody is the legal authority to control a child. The power to make important
decisions about a child is generally referred to as "legal" custody. The power to maintain
physical, day-to-day control over a child is generally referred to as "physical" custody.
The custodial parent is the parent with physical custody of a child. The other parent is
the non-custodial parent. Both parts of custody - legal and physical - can be sole or joint.
Each state has a statutory standard to be used by the courts in deciding custody
disputes. All 50 states have enacted the Uniform Child Custody Jurisdiction Act which is
intended to avoid conflict between courts of different states in cases where parents have
moved children from one state to another. In such cases, the Uniform Act provides that
the proper state to decide custody is the state which was the home state (state of
residence for the prior six months) at the time of commencement of the divorce action.
The Uniform Act requires courts to decline jurisdiction over a custody issue if the court of
another state is the home state of a child and, therefore, is the proper place to determine
custody.
The most critical consideration of all
state courts is the "best interest of the child." In
determining the best interests of the child, courts generally consider:
1) the physical, emotional, religious, and social needs of the child; 2)
the capability and desire of each parent to meet these needs; 3) the
child's preference if the child is of sufficient age and capacity to
form a preference; 4) the love and affection existing between the child
and each parent; 5) the length of time the child has lived in a stable
environment and the desirability of maintaining continuity; 6) the desire
and ability of each parent to allow an open and loving frequent
relationship between the child and the other parent; 7) any evidence of
domestic violence, child abuse, or child neglect; 8) evidence that substance
abuse by either parent or other members of the household directly
affects the emotional or physical well-being of the child; and 9) other
factors that the court considers pertinent. In making an award of
custody, the court may consider only those facts that directly affect
the well-being of the child.
Please see specific state for details and/or
differences.
ALABAMA
| ALASKA | ARIZONA | ARKANSAS
| CALIFORNIA | COLORADO
| CONNECTICUT | DELAWARE
| FLORIDA
GEORGIA | HAWAII | IDAHO
| ILLINOIS | INDIANA | IOWA
| KANSAS | KENTUCKY | LOUISIANA
| MAINE | MARYLAND
MASSACHUSETTS | MICHIGAN
| MINNESOTA | MISSISSIPPI
| MISSOURI | MONTANA | NEBRASKA
| NEVADA
NEW HAMPSHIRE | NEW
JERSEY | NEW MEXICO | NEW
YORK | NORTH CAROLINA | NORTH
DAKOTA | OHIO
OKLAHOMA | OREGON | PENNSYLVANIA
| RHODE ISLAND | SOUTH
CAROLINA | SOUTH DAKOTA | TENNESSEE
TEXAS | UTAH | VERMONT
| VIRGINIA | WASHINGTON
| WEST VIRGINIA | WISCONSIN
| WYOMING
ALABAMA
The court may award the custody of the children of the marriage to either father
or mother, as may seem right and proper, having regard for the moral character and
prudence of the parents and the age and sex of the children. In cases of abandonment
of the husband by the wife, the husband shall be awarded the custody of the children
after they are seven years of age, if he is a suitable person to have custody.
Although not expressly stated in the Alabama Custody Statute, decisions of the
Alabama courts emphasize that the standard used by the courts concerning child
custody is the �best interest� standard. The best interest of the child is the primary
concern in all determination involving child custody.
ALASKA
The courts in Alaska are required to determine custody in accordance with the
�best interest of the child.� In determining the best interests of the child, the court shall
consider: 1) the physical, emotional, religious, and social needs of the child; 2) the
capability and desire of each parent to meet these needs; 3) the child�s preference if the
child is of sufficient age and capacity to form a preference; 4) the love and affection
existing between the child and each parent; 5) the length of time the child has lived in a
stable environment and the desirability of maintaining continuity; 6) the desire and ability
of each parent to allow an open and loving frequent relationship between the child and
the other parent; 7) any evidence of domestic violence, child abuse, or child neglect; 8)
evidence that substance abuse by either parent or other members of the household
directly affects the emotional or physical well-being of the child; and 9) other factors that
the court considers pertinent. In making an award of custody, the court may consider
only those facts that directly affect the well-being of the child.
AS 25.24.150.
If a parent requests the court order shared custody of a child, the court shall
consider all relevant factors. If the court denies shared custody, the reasons for the
denial shall be stated on the record.
AS 25.20.090 and 25.20.100.
ARIZONA
Arizona law defines �joint legal custody� to mean a condition under which both
parents share legal custody, and neither parent�s rights are superior. �Joint physical
custody� means the physical residence of the child is shared by the parents in a manner
that assures that the child has substantially equal time and contact with both parents.
�Visitation� means the right to have a child physically placed with the parent and the right
and responsibility to make, during that placement, routine daily decisions regarding the
child�s care consistent with the major decisions made by the person having legal
custody.
The Arizona court shall determine custody in accordance with the best interests
of the child. The court shall consider all relevant factors including: 1) the wishes of the
child�s parents as to custody; 2) the wishes of the child as to the custodian; 3) the
interaction and interim relationship of the child with the parents, siblings and any other
person who may be important to the child�s best interests; 4) the child�s adjustment to
home and school and community; 5) the mental and physical health of all individuals; 6)
which parent is more likely to allow the child frequent and meaningful continuing contact
with the other parent; 7) if one parent, both parents, or neither parent has provided
primary care of the child; and 8) the nature and extent of coercion or duress used by a
parent in obtaining an agreement regarding custody.
The court shall consider evidence of domestic violence in regarding the best
interests of the child. The person who has committed an act of domestic violence has
the burden of proving that visitation with that person will not endanger the child or
significantly impair the child�s emotional development.
In awarding child custody, the court may order sole or joint custody. In
determining custody, the court shall not prefer a parent as custodian on the basis of that
parent�s sex. The court may order joint legal custody without ordering joint physical
custody.
The court may issue an order for joint custody over the objection of one of the
parents if the court makes specific written findings of why the order is in the best
interests of the child.
Before an award is made granting joint custody, the parents shall submit a
proposed parenting plan. If the parents are unable to agree on any element to be
included in a parenting plan, the court shall determine that element. The court may
determine other factors that are necessary to promote and protect the emotional and
physical health of the child. The court may specify one parent as the primary caretaker of the child and one
home as the primary home of the child. ARS �25-332.
ARKANSAS
In an action for divorce in Arkansas, the award of custody of children shall be
made without regard to the sex of the parent, but solely in accordance with the welfare
and best interest of the children. The statute does not list the factors the court should
consider in determining what custody arrangement is in the best interest of the children.
Ark. stat. Ann. 9-13-101.
CALIFORNIA
Joint custody means joint physical custody and joint legal custody. Joint legal
custody means that both parents shall share the right and the responsibility to make the
decisions relating to the health, education, and welfare of a child. Joint physical custody
means that each of the parents shall have significant periods of physical custody. Joint
physical custody shall be shared by the parents in such a way so as to assure a child of
frequent and continuing contact with both parents. Sole legal custody means that one
parent shall have the right and the responsibility to make the decisions relating to the
health, education, and welfare of a child. Sole physical custody means the child shall
reside with and be under the supervision of one parent, subject to visitation by the other
parent.
Cal. Fam. Code �3002-3011.
In making determinations about child custody, the court considers what is in the
best interest of the child. The factors considered by the court include: 1) the health,
safety, and welfare of the child; and 2) any history of abuse by one parent against the
child or against the other parent; and 3) the nature and amount of contact with both
parents.
Cal. Fam. Code �3011.
Custody shall be granted in the following order of preference, according to the
best interests of the child: 1) to both parents jointly or to either parent. In making an
order granting custody to either parent, the court shall consider, among other factors,
which parent is more likely to allow the child frequent and continuing contact with the
non-custodial parent. The court shall not prefer a parent as custodian because of that
parent�s sex; 2) If to neither parent, to the person or persons in whose home the child
has been living in a wholesome and stable environment; 3) To any other person or
persons deemed by the court to be suitable and able to provide proper care for the child.
Cal. Fam. Code �3040.
If a child is of sufficient age and capacity so as to form an intelligent preference
as to custody, the court shall consider and give due weight to the wishes of the child in
making an order granting or modifying custody.
Cal. Fam. Code �3042.
In order to avoid conflict between courts of different states in cases where
parents have moved children from one state to another, all fifty states have enacted the
Uniform Child Custody Jurisdiction Act. The Uniform Act provides that the proper state
to decide custody is the state which was the home state (state of residence for the prior
six months) at the time of commencement of the divorce action. The Uniform Act requires
courts to decline jurisdiction over a custody issue if the court of another state is the home
state of a child and, therefore, is the best place to determine custody.
Cal. Fam. Code �3400-3425.
COLORADO
Colorado laws use the phrase, �joint custody,� to mean an order awarding legal
custody of the minor child to both parties and providing that all major decisions regarding
health, education, and wealth for the child shall be made jointly. The custody order may
designate one party as a residential custodian for the purpose of determining the legal
residence of the child. The court order may also provide that one party shall have a
longer period of physical custody of the child than the other party. Joint custody does
not eliminate the duty of child support ordered pursuant to the child support statute.
Both parties may submit their plan for implementing joint custody. The court may
formulate its own plan which shall address and resolve arrangements for the following:
1) the location of both parties and the periods of time during which each party will have
physical custody of the child and the legal residence of the child; 2) the child�s
education;
3) religious training; 4) healthcare; 5) finances to provide for the child�s
needs; 6)
holidays and vacations; and 7) any other factors regarding the physical or emotional
health and well-being of the child. The court may also order mediation to assist the
parties in formulating or modifying or in carrying out their joint custody plan.
It is the expressed purpose of the Colorado Statutes that it is in the best interest
of the child and the parties to encourage frequent and continuing contact between each
parent and the minor child. In the event of custody disputes, the court shall determine
custody in accordance with the best interests of the child. The court may order joint or
sole custody after making a finding that joint or sole custody would be in the best interest
of the child. In determining the best interest of the child, the court considers all relevant
factors, including: 1) the preference of the parents; 2) the wishes of the
child; 3) the
relationship of child and parents; 4) the child�s adjustment to his home and school and
community; 5) the mental and physical health of all individuals
involved; 6) the ability of
the custodian to encourage love and affection between the child and the other
party; 7)
the ability of the parties to cooperate and to make decisions jointly; 8) the physical
proximity of the parties to each other as this relates to the practical considerations of
awarding joint custody; 9) whether an award of joint custody will promote more frequent
or continuing contact between the child and each of the parents; 10) whether there has
been child abuse or neglect; and 11) whether there has been spouse abuse. In
considering a proposed custodian, the court shall not presume that any person is better
able to serve the best interest of the child because of that person�s sex. If a parent is
absent or leaves home because of spouse abuse by the other parent, such absence or
leaving shall not be a factor in determining the best interests of the child.
CRSA �14-10-124.
CONNECTICUT
Under Connecticut law, there is a presumption that joint legal custody is in the
best interest of a minor child. In making or modifying any order with respect to custody
or visitation, the court shall be guided by the best interests of the child. The court shall
give consideration to the wishes of the child if the child is of sufficient age and capable of
forming an intelligent preference. In making the initial custody decision, the court may
take into consideration the causes for the dissolution of the marriage. The court may
also consider whether a party has satisfactorily completed the mandatory parenting
education program. C.G.S.A �46b-56.
DELAWARE
Upon the filing of a Petition which seeks custody or visitation rights, a preliminary
injunction shall be issued against both parties, enjoining them from removing any child of
the parties then residing in Delaware from the jurisdiction of the court without the prior
written consent of the parties or the permission of the court. The preliminary injunction
shall be effective against the Petitioner upon the time of filing of the Petition and against
the Respondent upon service.
The court shall determine the legal custody and residential arrangements for a
child in accordance with the best interests of the child. In determining the best interests
of the child, the court shall consider all relevant factors including: 1) the wishes of the
parents; 2) reasonable wishes of the child; 3) the interaction of the child with his or her
parents and siblings; 4) the child�s adjustment to his home, school, and community; 5)
the mental and physical health of all individuals; 6) past and present compliance by both
parents with their rights and responsibilities to their child; and 7) evidence of domestic
violence. There shall be a rebuttable presumption that no perpetrator of domestic
violence shall be awarded sole or joint custody of any child.
In all proceedings seeking custody and visitation rights, the court shall refer the
parties to mediation. The parties shall meet with a court mediator to identify disputed
issues and to attempt settlement of all unresolved issues. No custody trial shall be
scheduled until the mediation process has been completed.
Whether the parents have joint legal custody or one of them has sole legal
custody, the court shall determine with which parent the child shall primarily reside. The
court shall encourage all parents and other persons to foster the exercise of a parent�s
custodial authority and the maintenance of frequent and meaningful contact between
parents and children.
13 DCA �722, 723, 727, 728, and 705A; Rule 16, Family Court Civil Rules. FLORIDA
The court shall determine all matters relating to custody of each minor child in
accordance with the best interest of the child. It is the public policy of Florida to assure
that each minor child has frequent and continuing contact with both parents and to
encourage parents to share the rights and responsibilities of child-rearing. After
considering all relevant factors, the father of the child shall be given the same
consideration as the mother in determining the primary residence of a child, regardless of
the age or sex of the child.
The court shall order that the parental responsibility for a minor child be shared by
both parents unless the court finds that shared parental responsibility would be
detrimental to the child. If the court determines that shared parental responsibility would
be detrimental to the child, it may order sole parental responsibility and make such
arrangements for visitation as will best protect the child.
In ordering shared parental responsibility, the court may consider the expressed
desires of the parents and may grant to one party the ultimate responsibility over specific
aspects of the child's welfare or may divide those responsibilities between the parties
based on the best interests of the child. Areas of responsibility may include primary
residence, education, medical and dental care, and any other responsibilities which the
court finds unique to a particular family.
For purposes of determining shared parental responsibility and primary
residence, the best interest of the child shall include an evaluation of all factors including
but not limited to: 1) the parent who is more likely to allow the child frequent and continuing
contact with the non-residential parent; 2) the love and other emotional ties existing
between the parents and the child; 3) the capacity and disposition of the parents to
provide the child with food, clothing, and medical care; 4) the length of time the child has
lived in a stable environment and the desirability of maintaining continuity; 5) the
permanence of the existing or proposed custodial home; 6) the moral fitness of the
parents; 7) the mental and physical health of the parents; 8) the home, school, and
community record of the child; 9) the reasonable preference of the child; 10) the
willingness and ability of each parent to encourage a close and continuing parent-child
relationship between the child and the other parent; and 11) any other fact considered by
the court to be relevant.
FSA �61.13. GEORGIA
The Georgia court shall determine custody issues on the basis of the best interest
of the children and what will best promote their welfare and happiness. In all cases in
which the custody of children is at issue between the parents, neither father nor mother
has a prior right to custody. In all custody cases in which the child has reached the age
of 14 years, the child shall have the right to select the parent with whom he or she
desires to live. The child�s selection shall be controlling unless the parent so selected is
determined by the court not to be a fit and proper person to have the custody of the
child. The court may issue an order granting temporary custody to the selected parent
for a trial period not to exceed six months, if such a temporary order is deemed
appropriate.
Joint custody, in the form of joint legal or joint physical custody, may be
considered by the court as an alternative form of custody. The primary consideration for
the court is what is in the best interest of the child.
GC �19-9-3.
Whenever there are minor children in a divorce case, the court may require the
parties to attend an educational seminar showing the effects of divorce on children. The
court may accept alternative counseling covering the same subject matter as the
required seminar. Unless waived, the failure of a party to successfully complete the
seminar shall be cause for appropriate action by the judge, including withholding the final
divorce decree, a contempt finding, and an award of attorney fees and costs.
Rule 24.8, Uniform Superior Court Rules. HAWAII
In an action for divorce, the court shall make an order for custody of the minor
child as may seem necessary or proper. In awarding custody, the court shall be guided
by the following standards and considerations: 1) custody should be awarded according
to the best interest of the child; 2) custody may be awarded to persons other than the
father or mother whenever the award serves the best interest of the child; 3) the child�s
wishes as to custody shall be considered and shall be given due weight by the court if
the child is of sufficient age and capacity to form an intelligent preference; 4) the court
may require an investigation and report concerning the care, welfare and custody of any
minor child; 5) the court may hear the testimony of any person or expert produced by any
party upon the court�s own motion whose knowledge or experience is such that the
person�s testimony is relevant to a just determination of what is for the best interest of
the child; 6) any custody award shall be subject to modification or change whenever the
best interests of the child require or justify the modification and, whenever possible, the
same judge who made the original order shall hear the motion or petition for
modification; 7) reasonable visitation right shall be awarded to the parents, grandparents,
and any person interested in the welfare of the child; 8) the court may appoint a guardian
ad litem to represent the interests of the child; and 9) the court shall consider evidence of
family violence, including determining who was the primary aggressor. If there is
evidence of family violence, an award of joint custody or any granted visitation shall be
arranged so as to best protect the child and the abused parent from any further harm.
Joint custody may be awarded at the discretion of the court. The court may award joint
legal custody without awarding joint physical custody. The court may order any party to
attend counseling, parenting classes or any other educational activity the court deems
appropriate to meet the best interest of the child. HRS �571-46, 571-46.1 and 571-46.2. IDAHO
The court may make such orders for the custody, care, and education of the
minor children as may seem necessary or proper in the best interests of the children.
The court shall consider all relevant factors which may include the following: 1) wishes
of the parents; 2) wishes of the child; 3) interaction of the child with parents and siblings;
4) child�s adjustment to home and school and community; 5) mental and physical health
and integrity of all individuals; 6) need to promote continuity and stability in the life of the
child; and 7) domestic violence, whether or not in the presence of the child. In any case
where the child is actually residing with any grandparent in a stable relationship, the
court may recognize the grandparent as having the same standing as a parent for
evaluating what custody arrangements are in the best interests of the child.
IC �32-717.
Joint custody means an order awarding custody of a minor child to both parents
and providing that physical custody shall be shared by the parents in such a way as to
assure the child will have frequent and continuing contact with both parents. The court
may award either joint physical custody or joint legal custody or both as the court
determines is for the best interest of the minor child. Unless the court finds that one of
the parents has been an habitual perpetrator of domestic violence, there shall be a
presumption that joint custody is in the best interest of a minor child.
IC �32-717B.
Whenever the parties dispute the issues of child custody and visitation, the court
shall refer the parties to mediation if the court finds that mediation is in the best interests
of the children and not otherwise inappropriate under the facts of the particular case.
Rule 16(j), Idaho Rules of Civil Procedure. ILLINOIS
The legal standard used by the Illinois courts to decide custody issues is �the best
interests of the child.� The court shall consider all relevant factors, including: 1) the
wishes of the child�s parent or parents as to custody; 2) the wishes of the child as to his
custodian; 3) the interaction of the child with his parents; 4) the child�s adjustment to his
home and school and community; 5) the mental and physical health of all
individuals; 6)
any physical violence or threat involved; 7) the occurrence of any ongoing
abuse; and 8)
the willingness and ability of each parent to encourage a close and continuing
relationship between the other parent and the child. 750 ILCS 5/602. INDIANA
The court shall determine custody in accordance with the best interests of the
child. There shall be no presumption favoring either parent. The court shall consider all
relevant factors including: 1) the age and sex of the child; 2) the wishes of the child�s
parents; 3) the wishes of the child, with more consideration given to the child�s wishes if
the child is at least 14 years old; 4) the interaction of the child with parents and siblings;
5) the child�s adjustment to his home, school, and community; and 6) the mental and
physical health of all individuals.
Except as otherwise agreed by the parties in writing, the custodian of a child may
determine the child�s upbringing, including his education, healthcare, and religious
training.
The court may award joint legal custody if it is in the best interest of the child. An
award of joint legal custody does not require an equal division of physical custody of the
child.
Upon its own motion, the motion of a party, or the motion of a child or his
guardian, the court may order the custodian or the joint custodians to obtain counseling
for the child under such terms as the court considers appropriate.
If a party who has been awarded custody of a child intends to move to a
residence that is outside Indiana or 100 miles or more from the party�s county of resident,
that party must file a notice of intent to move with the clerk of court and send a copy of
the notice to the non-custodian parent. Upon request of either party, the court shall
schedule a hearing to consider appropriate modifications to the custody, visitation, and
child support provisions of the decree. The court shall take into account the distance
involved in a proposed change of residence and the hardship and expense involved for
non-custodial parents to exercise visitation rights. Except in cases of extreme hardship,
the court shall not award attorney fees for such motions. AIC �31-1-11.5-21 and 21.1. IOWA
The legal standard used by the Iowa courts to decide custody issues is � the best
interest of the child.� The court will also order the custody award which will assure the
child the opportunity for the maximum continuing physical and emotional contact with
both parents unless direct physical harm or significant emotional harm to the child or a
parent is likely to result from such contact. The court will order the custody award which
will encourage parents to share the rights and responsibilities of raising the child. The
court shall consider the denial by one parent of the child�s opportunity for maximum
continuing contact with the other parent, without just cause, a significant factor in
determining the proper custody arrangement. Unless otherwise ordered by the court,
both parents shall have legal access to information concerning the child including, but
not limited to, medical, educational and law enforcement records.
On the application of either parent, the court shall consider granting joint custody
in cases where the parents do not agree to joint custody. If the court does not grant joint
custody, the court shall cite clear and convincing evidence, relying upon the best interest
factors, that joint custody is unreasonable and not in the best interest of the child. The
court may require the parties to participate in custody mediation counseling to determine
whether joint custody is in the best interest of the child.
In considering what custody arrangement is in the best interest of the child, the
court considers all relevant factors including: 1) whether each parent would be a suitable
custodian; 2) whether the psychological and emotional needs and development of the
child will suffer due to lack of active contact, with inattention from both parents; 3)
whether the parents can communicate with each other regarding the child�s needs; 4)
whether both parents have actively cared for the child before and since the separation;
5) whether each parent can support the other parent�s relationship with the child; 6)
whether the custody arrangement is in accord with the child�s wishes; 7) whether one or
both parents agree or are opposed to joint custody; 8) the geographic proximity of the
parents; and 9) whether the safety of the child or the other parent will be jeopardized by
the awarding of joint custody or by unsupervised or unrestricted visitation.
ICA Section 598.41. KANSAS
The court shall determine custody of a child in accordance with the best interests
of the child. If the parties have a written agreement concerning the custody or residency
of their minor child, it is presumed that the agreement is in the best interest of the child.
This presumption may be overcome, and the court may make a different order if the
court makes specific findings of fact stating why the agreement is not in the best interest
of the child. In determining the issue of custody, the court shall consider all relevant
factors including but not limited to: 1) the length of time that the child has been under
the actual care and control of any person other than a parent and the reasons for that
situation ; 2) the desires of the child�s parents as to custody; 3) the preference of the
child; 4) the interaction of the child with parents and siblings; 5) the child�s adjustment to
home, school, and community; 6) the willingness and ability of each parent to allow for a
continuing relationship between the child and the other parent; and 7) evidence of
spousal abuse. There shall be no presumption that it is in the best interest of any infant
or young child to be in the custody of the mother.
The court may award sole or joint custody. If the court awards joint custody, the
court may further determine that the residency of the child shall be divided either in an
equal manner or on the basis of a primary residency with one parent. The court may
require the parents to submit a plan for implementation of a joint custody arrangement. If
the court does not order joint custody, it shall include in the record the specific findings of
fact upon which the order for custody other than joint is based.
KSA �60-1610(a). KENTUCKY
The court shall determine custody in accordance with the best interests of the
child. Equal consideration shall be given to each parent. The court shall consider all
relevant factors including: 1) the wishes of the parents; 2) the wishes of the
child; 3) the
interaction and interrelationship of the child with his parents; 4) the child�s adjustment to
his home and school and community; 5) the mental and physical health of all individuals
involved; and 6) any information regarding domestic violence.
The court shall not consider conduct of a proposed custodian that does not affect
his relationship to the child. The abandonment of the family residence by a custodial
parent shall not be considered where the party was physically harmed or threatened by
the other spouse. The court may grant joint custody if it is in the best interest of the
child.
K.R.S. �403.270. LOUISIANA
In a divorce proceeding in Louisiana, the court shall award custody of a child in
accordance with the best interest of the child. The court shall consider all relevant
factors in determining the best interest of the child. Such factors may include: 1) the
emotional ties between each party and the child; 2) the capacity and disposition of each
party to give the child love, affection, and guidance; 3) the capacity and disposition of
each party to provide the child with food, clothing, and material needs; 4) the length of
time the child has lived in a stable environment and the desirability of maintaining
continuity of the environment; 5) the permanence of the existing or proposed custodial
home; 6) the moral fitness of each party; 7) the mental and physical health of each party;
8) the home, school, and community history of the child; 9) the reasonable preference of
the child; 10) the willingness and ability of each party to encourage a close and
continuing relationship between the child and the other party; 11) the distance between
the respective residences of the parties; and 12) the responsibility for the care and
rearing of the child previously provided by each party.
If the parents agree who is to have custody, the court shall award custody in
accordance with their agreement unless the best interest of the child requires a different
award. In the absence of an agreement, or if the court feels the agreement is not in the
best interest of the child, the court shall award custody to the parents jointly. However, if
it is shown by clear and convincing evidence that an award of sole custody to one parent
is in the best interest of the child, the court shall award sole custody to that parent.
CC Art. 131-135; and RS 9:331-345. MAINE
Maine has done away with the terms �custody� and �visitation.� Under the divorce
statutes, the Maine court shall make �in a word of parental rights and responsibilities�
with respect to any minor child. This is defined to mean responsibilities for the various
aspects of a child�s welfare are divided between the parents, with the parent who has
allocated a particular responsibility having the right to control that aspect of the child�s
welfare. Responsibilities may be divided exclusively to one parent or proportionally
between the parents. Aspects of a child�s welfare for which responsibility may be divided
include primary physical residence, parent-child contact, support, education, medical and
dental care, religious upbringing, travel boundaries, and any other aspect of parental
rights and responsibilities. Shared parental rights and responsibilities means that most
or all aspects of a child�s welfare remain the joint responsibility and right of both parents.
In other words, both parents retain equal parental rights and responsibilities and both
parents must confer and make joint decisions regarding the child�s welfare. Sole
parental rights and responsibilities means that one parent is granted exclusive parental
rights and responsibilities with respect to all aspects of a child�s welfare with the possible
exception of the responsibility for support.
Prior to any contested hearing involving minor children, the court shall refer the
parties to remediation to try to resolve issues of parental rights and responsibilities. Any
agreement reached by the parties through mediation must be reduced to writing, signed
by the parties and presented to the court for approval as a court order. If the parties do
not reach agreement in mediation, the court must determine whether the parties made a
good faith effort to mediate the issue before proceeding with a hearing. If the court finds
that either party failed to make a good faith effort to mediate, the court may order the
parties to return to mediation, may dismiss the action or any part of the action, may
render a decision or judgment by default, may assess attorney fees and costs, or may
impose any other sanction that is appropriate in the circumstances.
In making an award of parental rights and responsibilities, the court shall apply
the standard of the best interest of the child. The court considers all factors involving the
safety and well-being of the child, including the following factors: 1) the age of the child;
2) relationship of the child with the parents; 3) the child�s preference; 4) the duration and
adequacy of the child�s current living arrangements and the desirability of maintaining
continuity; 5) the stability of any proposed arrangements for the child; 6) the motivation
of the parties involved and their capacities to give the child love and guidance; 7) the
child�s adjustment to the child�s present home, school and community; 8) the capacity of
each parent to allow and encourage frequent and continuing contact between the child
and the other parent; 9) the capacity of each parent to cooperate or to learn to cooperate
in child care; 10) methods for parental cooperation and resolving disputes; 11) the effect
on the child if one parent has sole authority over the child�s upbringing; 12) the existence
of any domestic abuse between the parents or any child abuse by a parent; and 13) all
other factors having a reasonable bearing on the physical and psychological well-being
of the child.
19 MRSA �752. MARYLAND
The Circuit Court of Maryland has the power to award custody of a child based
upon what is in the best interest of the child. For the purpose of determining what is
likely to be in the best interest and welfare of a child, the court may consider all relevant
circumstances including: the fitness of the person seeking custody; the age and sex of
the child; the physical and moral well-being of the child; the proposed custodial home
and environment; the preference of the child; the preference of the parents; the conduct
and suitability of the parents, including marital misconduct of either party; and all other
relevant circumstances.
ACM �1-201.
The Maryland Court Rules provide for mediation of child custody and visitation
disputes. The court shall determine whether mediation is appropriate and would likely be
beneficial to the parties or the child. The court shall enter an order requiring the parties
to mediate the custody or visitation dispute. Rule S 73A, Maryland Rules. MASSACHUSETTS
Upon the filing of a divorce action and until a judgment on the merits is issued,
the parents shall have temporary shared legal custody of any minor child. However, the
judge may enter an order for temporary sole legal custody if written findings are made
that such shared custody would not be in the best interest of the child. An award of
temporary shared legal custody shall not be construed to create any presumption in
favor of temporary shared physical custody.
In making an order or judgment for custody of children, the rights of the parents
shall, in the absence of misconduct, be held to be equal. The happiness and welfare of
the children shall determine their custody. The court shall consider whether or not the
child�s present or past living conditions adversely affect his physical, mental, moral, or
emotional health.
There shall be no presumption either in favor of or against shared legal or shared
physical custody at the time of the trial. If, at the time of trial, either party proposes
shared legal or shared physical custody, the parties shall submit to the court a shared
custody plan to implement the details including the periods of time during which each
party will have the child reside or visit with him and the procedure by which such periods
of time shall be determined. The court may reject a shared custody plan submitted by
the parties and may issue a different plan or may order sole legal and physical custody
to either parent. An award of shared custody shall not reduce a parent�s responsibility
for child support.
Where the parents have reached an agreement providing for the custody of
children, the court may enter an order in accordance with such agreement, unless
specific findings are made by the court indicating that such an order would not be in the
best interest of the children.
A minor child of divorced parents who is a native of the commonwealth of
Massachusetts or who has resided at least five years within Massachusetts shall not be
removed out of the state without the consent of both parents, unless the court orders
otherwise for good cause shown.
ALM 208 �30 and 31. MICHIGAN
The Michigan courts make determinations of custody based on what is in the best
interests of the child. The court considers all relevant information including the following:
1) the emotional ties existing between the parties and the child; 2) the capacity of the
parties to give the child love and affection and to continue the education and raising of
the child in his or her religion; 3) the capacity of the parties to provide the child with food,
clothing, medical care, and other material needs; 4) the length of time the child has lived
in a stable environment and the desirability of maintaining continuity; 5) the permanence
as a family unit of the existing or proposed custodial home; 6) the moral fitness of the
parties; 7) the mental and physical health of the parties; 8) the home, school, and
community record of the child; 9) the reasonable preference of the child; 10) the
willingness and ability of the parties to encourage a close and continuing parent-child
relationship between the child and the other parent; 11) any domestic violence; and 12)
any other factor considered by the court to be relevant to the particular custody dispute.
MCLA �722.23
At the request of either parent, the court shall consider an award of joint custody
and shall state on the record the reasons for granting or denying a request. The court
shall determine whether joint custody is in the best interest of the child. In addition to the
other factors, the court also considers whether the parents will be able to cooperate
concerning important decisions regarding the welfare of the child. If the parents agree
on joint custody, the court shall award joint custody unless the court determines, based
upon clear and convincing evidence, that joint custody is not in the best interest of the
child. If the court awards joint custody, the court may include in its award a statement
regarding the time the child shall reside with each parent or may provide that physical
custody be shared by the parents in a manner to assure the child continuing contact with
both parents. Whenever a child resides with a parent, that parent shall decide all routine
matters concerning the child. MCLA �722.26a. MINNESOTA
The legal standard used by the Minnesota courts to decide custody issues is "the
best interest of the child." This includes consideration of the following factors: 1) the
wishes of the child's parent or parents as to custody; 2) the reasonable preference of the
child if the court deems the child to be of sufficient age to express a preference; 3) the
person who has been the child's primary caretaker; 4) the intimacy of the relationship
between each parent and the child; 5) the interaction and interrelationship of the child
with a parent or parents, siblings, and any other person who may significantly affect the
child's best interest; 6) the child's adjustment to home, school, and community; 7) the
length of time the child has lived in a stable, satisfactory environment, and the desirability
of maintaining continuity; 8) the permanence as a family unit of the existing or proposed
custodial home; 9) the mental and physical health of all individuals involved; 10) the
capacity of the parties to give the child love, affection, and guidance, and to continue
educating and raising the child in the child's culture and religion; 11) the child's cultural
background; 12) the effect on the child of the actions of an abuser, if related to domestic
abuse that has occurred between the parents; and 13) the disposition of each parent to
encourage and permit frequent and continuing contact by the other parent with the child.
The court may not use one factor to the exclusion of all others. The primary caretaker
factor may not be used as a presumption in determining the best interest of the child.
The court must make detailed findings on each of the factors and explain how the factors
led to its conclusions and to the determination of the best interest of the child.
Minn. Stat. �518.17, Minn. Stat. �518A.01-.25. MISSISSIPPI
Joint custody may be awarded where irreconcilable differences is the ground for
divorce, upon application of both parents, and in the discretion of the court. There shall
be a presumption that joint custody is in the best interest of a minor child where both
parents have agreed to an award of joint custody. Joint physical custody means that
each of the parents shall have significant periods of physical custody. Joint physical
custody shall be shared by the parents in such a way so as to insure a child of frequent
and continuing contact with both parents. The court has the discretion to award custody
according to what is in the best interest of the child. The court awards physical and legal
custody, and either or both may be sole or joint. MC 93-5-23 and 93-5-24. MISSOURI
The legal standard used by the Missouri courts to decide custody issues is �the
best interest of the child.� The court considers all relevant factors including: 1) the
wishes of the child�s parents; 2) the wishes of the child; 3) the relationship of the child
with parents; 4) the child�s adjustment to his home, school, and community; 5) the mental
and physical health of all individuals involved; 6) the needs of a child for a continuing
relationship with both parents and the ability and willingness of parents to actively
perform their functions as mother and father for the needs of the child; 7) the intention of
either parent to relocate his residence outside the state; and 8) which parent is more
likely to allow the child frequent and meaningful contact with the other parent.
The court shall determine the custody arrangement which will best assure that
parents share in decision-making responsibility and that there will be frequent and
meaningful contact between the child and each parent.
In determining custody, the court may not give preference to either parent
because of that parents� age, sex, or financial status; nor because of the age or sex of
the child.
Any decree providing for joint custody shall include a specific written plan setting
forth the terms of such joint custody. Prior to awarding custody in the best interest of the
child, the court shall consider each of the following: 1) joint custody to both parents
which shall not be denied solely for the reason that one parent opposes joint custody; 2)
sole custody to either parent; or 3) third-party custody or visitation.
VAMS �452.375. MONTANA
The standard used by Montana courts to decide custody issues is �the best
interest of the child.� The court considers all relevant factors, including, but not limited
to: 1) the wishes of the child�s parent or parents; 2) the wishes of the child; 3) the
interaction of the child with the child�s parents; 4) the child�s adjustment to home and
school and the community; 5) the mental and physical health of all individuals; 6)
physical abuse or threat by one parent against the other, or the child; and 7) chemical
dependency or chemical abuse on the part of either parent.
The following are used by the Montana courts as rebuttable presumptions and
apply unless contrary to the best interest of the child: 1) Custody should be granted to
the parent who has provided most of the primary care during the child�s life; 2) a custody
action brought by a parent, within six months after a child support action against that
parent, is vexatious. The following are also rebuttable presumptions by law: 1) a known
failure to pay birth-related costs is not in the best interest of the child; and 2) failure to
pay child support that the person is able to pay is not in the best interest of the child.
MCA 40-4-212. NEBRASKA
Nebraska law encourages the parties to develop a Parenting Plan through
mediation. The Parenting Plan shall contain custody and visitation arrangements,
apportionment of time with each party, and provisions for returning to mediation when
necessary to modify the Parenting Plan. The Parenting Plan shall encourage mutual
discussion of major decisions regarding the minor child�s education, health care and
religious upbringing. Each party shall establish procedures for making decisions
regarding the day-to-day care and control of the minor child while the minor child is
residing with that party. The Parenting Plan shall include a schedule which designates in
which party�s home the minor child shall reside on given days of the year, including
provisions for holidays, birthdays, vacations and special occasions. Consideration shall
be given to the child�s age and development needs and what is necessary to encourage
a healthy relationship between the child and each party.
Reissued Revised Statutes 43-2901 to 43-2919.
The court may order a Parenting Plan or make such other orders regarding the
custody and visitation of minor children, as required by the best interest of the minor
child. Custody and time spent with each parent shall be determined on the basis of the
best interest of the minor child with the objective of maintaining the on-going involvement
of both parents in the minor child�s life. In determining the best interest of the minor
child, the court shall consider all relevant circumstance including but not limited to: 1) the
relationship of the minor child to each parent prior to the commencement of the
dissolution; 2) the reasonable preference of the minor child; 3) the general health,
welfare and social behavior of the minor child. The court shall not give preference to
either party based on the sex of the parent and no presumption shall exist that either
parent is more fit or suitable than the other. After a hearing in open court, the court may
award joint custody when both parents agree to such an arrangement. The court must
specifically find that joint custody is in the best interest of the minor child.
Reissued Revised Statutes 42-364. NEVADA
The expressed intention in the Nevada custody statutes is to 1) ensure that minor
children have a frequent and continuing relationship with both parents after divorce; and
2) encourage both parents to share in the rights and responsibilities of child rearing.
Until a court has determined otherwise, the parents have joint legal custody. In
determining all custody matters, the sole consideration of the court is the best interest of
the child. The court may grant joint custody if that would be in the best interest of the
child. No preference may be given to either parent solely on the basis of the sex of the
parent. The court shall award custody in the following order of preference, unless the
best interest of the child requires otherwise: 1) to both parents jointly; 2) to the person in
whose home the child has been living and where the child has had a wholesome and
stable environment; 3) to any person related to the child whom the court finds suitable
and able to provide proper care and guidance for the child; and 4) to any other person
whom the court finds suitable and able to provide proper care and guidance for the child.
In determining the best interest of the child, the court shall consider, amount other things:
1) the wishes of the child, if the child is of sufficient age and capacity to form an
intelligent preference as to custody; 2) the wishes of a parent or guardian; or 3) whether
either parent or any other person seeking custody has engaged in an act of domestic
violence against a child or a parent.
There is a presumption that joint custody would be in the best interest of a minor
child if the parents have agreed to joint custody. The court may award joint legal custody
without awarding joint physical custody, if the parents have agreed to joint legal custody.
Any order for joint custody may be modified or terminated by the court upon the
petition of one or both parents, or on the court�s own motion, if it is shown that the best
interest of the child requires a modification. NRS 125.450-.520.
Contested custody or visitation issues must be resolved by the District Court
within six months. The court can extend the time limit but only for extraordinary cases
that present unforeseen circumstances.
Rule 251, Nevada Supreme Court Rules. NEW HAMPSHIRE
The standard for determining custody issues in New Hampshire is the best
interest of the child. Unless there has been domestic abuse, there shall be a
presumption that joint legal custody is in the best interest of minor children where 1) the
parties have agreed to joint legal custody; or 2) either party has requested joint legal
custody, in which case it may be awarded in the discretion of the court. The term �joint
legal custody� shall include all parental rights, with the exception of physical custody
which shall be awarded as the court deems most conducive to the benefit of the children.
In those cases where joint legal custody is awarded to both parents and physical custody
is awarded to one of the parents, the other parent shall be awarded physical custodial
rights during those periods of time when the children are with that parent (previously
called visitation).
The court shall not give any preference to either parent because of the sex of that
parent. The court may take into consideration any preference shown by the children.
The court may grant reasonable visitation privileges to a stepparent or grandparent of
the children. The court may award custody to a stepparent or grandparent if the court
determines that such an award is in the best interest of the child.
RSA 458:17.
Both parties are required to attend a four-hour mandatory seminar about how to
minimize the adverse impact of divorce on the children and how to help the children deal
with the issues surrounding divorce and custody.
RSA 458-D:1 to 10. NEW JERSEY
The New Jersey Court shall make an award of custody which is in the best
interest of the child. The New Jersey custody statute states that the policy of the New
Jersey law is to assure minor children of frequent and continuing contact with both
parents after a divorce. The statute states that it is in the public interest to encourage
parents to share the rights and responsibilities of child-rearing in order to fulfill this policy.
The rights of both parents shall be equal. The court shall enter a custody order
which may include one of the following situations: 1) joint custody of a minor child to
both parents, which is comprised of joint legal custody or joint physical custody ; 2) sole
custody to one parent with appropriate visitation for the non-custodial parent; or 3) any
other custody arrangement as the court may determine to be in the best interest of the
child. The court may consider all available information, and all factors the court deems
relevant, to determine what is in the best interest of the child. A parent shall not be
deemed unfit unless the conduct of that parent has a substantial adverse effect on the
child. The court shall order any custody arrangement which is agreed to by both parents,
unless the arrangement is contrary to the best interest of the child. The court shall refer
the parties to mediation to try to resolve all custody and visitation issues. If mediation is
not successful, the court may order a custody investigation to be made by the county
probation office. In any case where the parties cannot agree to a custody or visitation
arrangement, the parties must each submit a Custody/Visitation Plan to the court. The
court shall consider the plans of both parties in determining custody and visitation.
NJSA 9:2-1 to 2-11; and Rule 5:8, New Jersey Rules of Court. NEW MEXICO
When custody is contested, the court shall refer the parties to mediation and may
order that each of the parties undergo individual counseling. If the minor child involved is
14 years of age or older, the court shall consider the child�s preference as to his
custodial parent before the court awards custody. The court shall determine custody in
accordance with the best interest of the child. In determining the best interest of the
child, the court shall consider all relevant factors including, but not limited to: 1) the
wishes of the child�s parents; 2) the reasonable preference of the child; 3) the interaction
and interrelationship of the child with his parents, his siblings, and any other person who
may significantly affect the child�s best interest; 4) the child�s adjustment to his home,
school, and community; and 5) the mental and physical health of all individuals.
There shall be a presumption that joint custody is in the best interest of a child in
the initial custody determination. In any case in which the parents agree to a form of
custody, the court should award custody consistent with the agreement, unless the court
determines the agreement is not in the best interest of the child. When joint custody is
awarded, the court shall approve a parenting plan for the implementation of the custody
arrangement. The parenting plan shall include a division of a child�s time and care into
periods of responsibility for each parent. The parenting plan may also include: 1)
statements regarding the child�s religion, education, child care, recreational activities,
and medical care; 2) designation of specific decision-making responsibilities; 3) methods
of communicating information about the child, transporting the child, and maintaining
contact between parent and child; 4) procedures for future decision-making, including
procedures for dispute resolution; and 5) other statements regarding the welfare of the
child, designed to clarify and facilitate parenting under joint custody arrangements.
�40-4-8 to 40-4-9.1 NMSA. NEW YORK
In a divorce action, the New York court shall award custody and visitation as
justice requires, after considering the circumstances of the case and of the parties and
after considering what is in the best interest of the child. The New York Supreme Court
has general jurisdiction over divorce, specifically including jurisdiction over custody
issues. However, the Supreme Court has the discretion to transfer child support
termination to the family court. Domestic Relations Law �240. NORTH CAROLINA
Whenever it appears to the North Carolina court that a divorce case involves a
contested issue as to the custody or visitation of a minor child, the court shall refer the
parties to mediation. Alimony, child support, and other economic issues may not be
refereed for mediation. Any agreement reached by the parties as a result of the
mediation shall be reduced to writing, signed by each party, and submitted to the court.
Unless the court finds good reason not to, the court shall incorporate the agreement of
the parties into the court�s order.
The court will make an order for custody as will best promote the interest and
welfare of the child. An order for custody must include findings of fact which support the
determination of what is in the best interest of the child. Joint custody shall be
considered upon the request of either parent.
GS �50-13.1 and 13.2. NORTH DAKOTA
The legal standard used by the North Dakota Courts to decide custody issues is
�the best interest of the child.� An order for custody of a minor child must award the
custody according to what will, in the opinion of the judge, promote the best interests and
welfare of the child. Between the mother and father, whether natural or adoptive, there
is no presumption as to who will better promote the best interests and welfare of the
child. The court considers all relevant factors including: 1) the emotional ties existing
between the parents and child; 2) the capacity of the parents to give the child love and
guidance: 3) the length of time the child has lived in a stable environment and the
desirability of maintaining continuity; 4) the permanence of the existing or proposed
custodial home; 5) the moral fitness of the parents; 6) the mental and physical health of
the parents; 7) the home, school, and community of record of the child; 8) the
reasonable preference of the child if the court deems the child to be of sufficient maturity
to express a preference; 9) evidence of domestic violence; 10) the making of false
allegations not made in good faith by one parent against the other; and 11) any other
factors considered by the court to be relevant.
NDCC �14-09-06.1, 14-09-06.2. OHIO
Ohio statutes use the phrase, �parental rights and responsibilities,� instead of
�custody.� In any divorce proceeding involving minor children, the court shall allocate the
parental rights and responsibilities for the care of the minor children of the marriage. The
court shall take into account all factors determining what is in the best interest of the
children. The court may allocate the parental rights and responsibilities for the care of
the children primarily to one of the parents, designate that parent as the residential
parent and the legal custodian of the child, and divide the other rights and
responsibilities between the parents, and provide for the other parent to have continuing
contact with the children. In the alternative, the court may allocate the parental rights
and responsibilities for the care of the children to both parents and issue a shared
parenting order requiring the parents to share all or some of the aspects of the physical
and legal care of the children in accordance with the approved plan for share parenting.
No person shall obtain or attempt to obtain from a child a written or recorded
statement or Affidavit setting forth the child�s wishes and concerns regarding the
allocation of parental rights and responsibilities concerning that child. No court shall
receive as evidence or consider any written or recorded statement or Affidavit that
purports to set forth a child�s wishes and concerns regarding the allocation of parental
rights and responsibilities.
The approval of a shared parenting plan is discretionary with the court. The court
shall not approve a plan unless it determines that the plan is in the best interest of the
children. If the court orders shared parenting of a child, both parents are considered to
have �custody� of the child. In determining the best interest of a child, the court shall
consider all relevant factors. ORC 3109.04. OKLAHOMA
In awarding the custody of a minor child, the court shall consider what appears to
be in the best interest of the physical and mental and moral welfare of the child. The
court may grant the care, custody, and control of the child solely to either parent or to the
parents jointly. If either or both parents have requested joint custody, the parents shall
file with the court their plans for the exercise of the joint care, custody, and control of the
children. Any plan shall include, but is not limited to, provisions detailing the physical
living arrangements for the child, child support obligations, medical and dental care,
school placement, and visitation rights. If it is in the best interest of the child, the court
may reject the parents� request for joint custody. The court shall award custody so as to
assure the frequent and continuing contact of the child with both parents. Thus, in
making an order for custody, the court may consider which parent is more likely to allow
the child frequent and continuing contact with the non-custodial parent. The court shall
not prefer a parent to be a custodian because of the gender of that parent. The court
shall consider evidence of ongoing domestic abuse. If the occurrence of domestic abuse
is established by clear and convincing evidence, there shall be a rebuttable presumption
that it is not in the best interest of the child to have custody or unsupervised visitation
granted to the abusive parent. The court will consider the preference of the child with
respect to custody, but the court shall not be bound by the child�s choice.
43 Okl.St.Ann. �109, �112, and �112.2. OREGON
In determining custody of a minor child, the Circuit Court of Oregon shall give
primary consideration to the best interests and welfare of the child. In determining the
best interests and welfare of the child, the court may consider the following relevant
factors: 1) the emotional ties between the child and other family members; 2) the
interest of the parties in, and their attitude toward, the child; 3) the desirability of
continuing an existing relationship; and 4) the abuse of one parent by the other. The
court may not rely on one factor, and exclude the other factors, in determining the best
interests of the child. The court shall consider the conduct, marital status, income, social
environment, or lifestyle of either party only if it is shown that any of these factors are
causing, or may cause, emotional or physical damage to the child. No preference in
custody shall be given to the mother or the father solely based on gender.
It is the policy of Oregon to assure minor children of frequent and continuing
contact with parents who have shown the ability to act in the best interest of the child,
and to encourage parents to share in the rights and responsibilities of raising their
children after the parents have divorced. Both parents shall have a continuing
responsibility to provide each other with addresses and contact telephone numbers, and
to immediately notify the other parent of any emergency circumstances or substantial
changes in the health of the child.
The court may order joint custody, which means an arrangement by which
parents share rights and responsibilities for major decisions. An order providing for joint
custody may specify one home as the primary residence of the child and designate one
parent to have sole power to make decisions about specific matters, while both parents
retain equal rights and responsibilities to make decisions on other matters. The court
shall not order joint custody unless both parents agree to the terms and conditions of the
order. When parents have agreed to joint custody, the court may not overrule that
agreement by ordering sole custody to one parent. Modification of a joint custody order
shall require showing of changed circumstances and a showing that the modification is in
the best interest of the child. Inability or unwillingness to continue to cooperate shall
constitute a change of circumstances sufficient to modify a joint custody order.
ORS 107.105, 107.137 - 107.179. PENNSYLVANIA
The Pennsylvania courts determine custody issues on the basis of what is in the
best interest of the child. It is the public policy of the state of Pennsylvania to assure a
reasonable and continuing contact with the child, with both parents, and the sharing of
the rights and responsibilities of child rearing of both parents. However, the predominant
concern is what is in the best interest of the child.
In making an order for custody, partial custody, or visitation to either parent, the
court shall consider among all of the factors, which parent is more likely to encourage,
permit, and allow frequent and continuing contact and physical access between the
non-custodial
parent and the child. The court shall also consider whether there has been
violent or abusive conduct by either parent. The court may require the parents to attend
counseling sessions and may consider the recommendations of the counselors prior to
awarding sole or shared custody. These counseling sessions may include, but shall not
be limited to discussions about the responsibilities and decision making arrangements
involved in both sole and shared custody and the suitability of each arrangement to the
capabilities of each parent or both parents. The court may require the counselor to
submit a report within such reasonable time as the court determines.
In its discretion, the court may require the parents to submit a plan for the
implementation of any custody order. The domestic relations section shall assist in the
formulation and implementation of the plan. When the court declines to enter an order
awarding custody, either as agreed to by the parents or according to the plan developed
by the parents, the court shall state its reasons for denial on the record.
Under Pennsylvania law, there is a distinction between �visitation� and �partial
custody.� Visitation is the right to visit with a child without physically removing the
from the custodial parent�s control. Partial custody is the right to take possession of the
child away from the custodial parent for a certain period of time.
The court may order the child of a party to submit to a physical or mental
examination upon the court�s own motion or on motion of a party with reasonable notice
to the person to be examined. Each expert�s report must be filed with the court and
provided to the parties within 60 days. The court may assess the cost of the examination
and report on any or both of the parties. The court may, on its own motion or the motion
of a party, appoint an attorney to represent the child in the action. The court may asses
the cost upon the parties.
23 Pa.C.S.A. � 5301 - 5314; rules 1915.1 - 1915.25, Pennsylvania Rules of Civil
Procedure. RHODE ISLAND
The controlling factor used by the Rhode Island Family Court in determining
custody of children is what is in the best interest of the children. The court may consider
all relevant information in determining what is in the best interest of the children. Rhode
Island statutes specifically provide that whether a parent is receiving public assistance
shall not be a factor considered in awarding custody. If there is evidence of past or
present domestic violence, the court shall consider that as a factor not in the best
interest of the children. The Family Court may direct the parties to participate in
mediation to attempt to resolve issues of custody and visitation. At its discretion, the
court may order medication and postpone trial of the case pending the outcome of the
mediation, in which case the issues of custody and visitation shall be tried only upon
failure to resolve the issues of custody by mediation. At its discretion, the court may
proceed to trial on all issues other than custody and visitation, and order the parties to
attempt to resolve custody and visitation issues through mediation.
GLRI 15-5-16(D) and 15-5-29. SOUTH CAROLINA
The best interest of the child is the primary and controlling consideration of the
South Carolina courts in all child custody determinations. The court shall consider the
best spiritual as well as other best interests of the children as may be fit, equitable, and
just, after consideration of the circumstances of the parties and all circumstances of the
case. The South Carolina courts had previously followed the �tender years doctrine� in
which there is a preference for awarding custody to the mother when the children are
young. However, the tender years doctrine has been specifically abolished under South
Carolina law. 1976 Code �20-3-160 and �20-7-1555. SOUTH DAKOTA
In an action for divorce in South Dakota, the court may order such direction for
the custody, care, and education of the children as may seem necessary or proper. In
awarding the custody of a child, the court shall be guided by consideration of what
appears to be for the best interests of the child. If the child is of a sufficient age to form
an intelligent preference, the court may consider that preference. Fault shall not be
taken into account with regard to the awarding of child custody, except as it may be
relevant to the fitness of either parent. S.D.C.L. 25-4-45 and 25-4-45.1.
The court may order joint legal custody so that both parents retain full parental
rights and responsibilities and so that both parents must confer on major decisions about
the welfare of the child. The court may grant one party the ultimate responsibility over
specific aspects of the child�s welfare or may divide those aspects between the parties
based on the best interest of the child. If it appears to the court to be in the best interest
of the child, the court may order how all responsibilities for the child shall be divided.
This includes primary physical residence, education, medical and dental care, and any
other responsibilities which the court finds unique to a particular family or in the best
interest of the child. During the time a child, over whom the court has ordered joint legal
custody to both parents, resides with either parent, that parent shall decide all routine
matters concerning the child. S.D.C.L. 25-5-7.1 and 25-5-7.2. TENNESSEE
In a divorce action, whenever custody of minor children is in issue, the
Tennessee court may award the care, custody, and control of children to either or both
parties on the basis of what is best for the welfare and interest of the children. Custody
provisions of the decree shall remain within the control of the court and be subject to
such changes or modification as the circumstances of the case may require. The gender
of the party seeking custody shall not give rise to a presumption of parental fitness or
cause a presumption in favor or against the award of custody to such party. However, in
the case of a child of tender years, the gender of the parent may be considered by the
court as a factor in determining custody after an examination of the fitness of each party
seeking custody. If the court finds that it would be in the best interest of the children, the
court may order the parties to attend an educational seminar concerning the effects of
the divorce on the children. The program shall be educational in nature and not
designed for individual therapy. The program shall not exceed four hours in duration.
The fees for the educational program shall be paid by the parties and may be assessed
by the court as it deems equitable.
In determining what custody arrangement is in the best interest of the child, the
court shall consider all relevant factors including the following: 1) the love, affection, and
emotional ties existing between the parents and child; 2) the disposition of the parents to
provide the child with food, clothing, medical care, education, and other necessary care,
and the degree to which a parent has been the primary care giver; 3) the importance of
continuity in the child�s life and length of time the child has lived in a stable, satisfactory
environment; 4) the stability of the family unit of the parents; 5) the mental and physical
health of the parents; 6) the home, school, and community record of the child; 7) the
reasonable preference of the child, if 12 years of age or older; 8) evidence of physical or
emotional abuse to the child, to the other parent, or to any other person; and 9) the
character and behavior of any other person who resides in or frequents the home of a
parent, and such person�s interactions with the child. Joint custody is an alternative
which can be awarded by the court, because it is expressly provided by statute, but joint
custody is generally disfavored by the Tennessee courts. TCA �36-6-101 and �36-6-106. TEXAS
Texas statutes have done away with the traditional concepts of �custody� and
�visitation,� replacing them with the concepts of �conservatorship� and �possession.� The
best interest of the child is the primary consideration of the court in determining the
issues of Conservatorship and possession of and access to the child. The court can
appoint either party as sole managing conservator, or can appoint both parties as joint
managing conservators. It is a rebuttable presumption that the appointment of both
parents of a child as joint managing conservators is in the best interest of the child. If
the court finds that appointing both parents as joint managing conservators is not in the
best interest of the child because the appointment would significantly impair the child�s
physical health or emotional development, the court shall appoint one of the parents as
sole managing conservator. A parent appointed as sole managing conservator of a child
has the following exclusive rights: 1) to establish the primary residence of the child; 2)
the consent to medical treatment; 3) to receive periodic payments of child support and to
hold or disburse child support payments for the benefit of the child; 4) to make decisions
of substantial legal significance concerning the child; 5) to consent to marriage and to
enlistment in the armed forces; 6) to make decisions concerning the child�s education;
and 7) the right to the services and earnings of the child.
To promote the amicable settlement of disputes between the parties, the parties
may enter into a written agreement containing provisions for Conservatorship
and
possession of the child. If the court finds that the agreement is in the child�s best
interest, the court shall issue an order in accordance with the agreement. If the court
finds the agreement is not in the child�s best interest, the court may request the parties to
submit a revised agreement or the court may issue an order for the Conservatorship
and
possession of the child.
Upon written agreement of the parties, the court may refer any dispute about the
parent-child relationship to arbitration. The agreement must state whether the arbitration
is binding or non-binding.
If a child is 12 years of age or older, the child may in a writing filed with the
court, chose the managing conservator, subject to court approval.
Joint managing Conservatorship does not require the award of equal or nearly
equal periods of physical possession of the child to each of the joint conservators. If
joint managing Conservatorship is ordered, the best interest of the child ordinarily
requires the court to designate a primary physical residence for the child. Texas law
contains a �standard possession order� which provides minimum times of possession of
a child for a parent who is not awarded primary physical residence of the child.
V.T.C.A., Family Code �153.001-.317. UTAH
In determining custody, the Utah court considers the best interests of the child
and the past conduct and demonstrated moral standards of each of the parties. The
wishes of a child, with respect to custody, are considered, but are not controlling. In
awarding custody, the court shall consider, among other factors, which parent is most
likely to act in the best interest of the child, including allowing the child frequent and
continuing contact with the non-custodial parent. UCA 30-3-10.
The court may order joint legal custody if it determines that joint legal custody is
in the best interest of the child and 1) both parents agree to joint legal custody or 2) both
parents appear capable of implementing joint legal custody. Joint legal custody means
the sharing of rights and powers by both parents; may include an award of exclusive
authority to one parent to make specific decisions; does not affect the physical custody,
except as specified; does not mean awarding equal periods of physical custody and
access to the child; and does not prohibit the court from specifying one parent as the
primary caretaker and one home as the primary residence of the child.
UCA 30-3-10.1 to 30-3-10.3. VERMONT
Vermont law has done away with the traditional terms �custody� and �visitation,�
and replaced them with �parental rights and responsibilities� and �parent-child contact.�
Parental rights and responsibilities means the rights and responsibilities related to a
child�s physical living arrangements, parent-child contact, education, medical and dental
care, religion, travel, and any other matter involving a child�s welfare and upbringing.
Parent-child contact means the right to have visitation with the child by a parent who
does not have physical responsibility.
The court may order parental rights and responsibilities to be divided or shared
between the parents on such terms and conditions as serve the best interest of the child.
If the parents cannot agree to divide or share parental rights and responsibilities, the
court shall award parental rights and responsibilities solely to one parent. The court shall
consider all relevant factors and shall not apply a preference for one parent over the
other because of the sex of the child, the sex of a parent, or the financial resources of a
parent.
Any agreement between the parents which divides or shares parental rights and
responsibilities shall be presumed to be in the best interest of the child. The court shall
refuse to approve the parents agreement only if the court finds that it is not in the best
interest of the child or if the court finds that it was not reached voluntarily.
15 VSA Section 664-670. VIRGINIA
Virginia law defines �joint custody� to mean 1) joint legal custody where both
parents retain joint responsibility for the care and control of the child and joint authority to
make decisions concerning the child, even though the child�s primary residence may be
with only one parent; or 2) joint physical custody where both parents share physical and
custodial care of the child; or 3) any combination of joint legal and joint physical custody
which the court deems to be in the best interest of the child. �Sole custody� means that
one person retains responsibility for the care and control of a child and has primary
authority to make decisions concerning the child.
In any case in which custody or visitation of minor children is at issue, the court
shall provide prompt adjudication of the issues. In determining custody, the court shall
give primary consideration to the best interest of the child. The court shall assure minor
children of frequent and continuing contact with both parents, when appropriate, and
encourage parents to share in the responsibilities of rearing their children. As between
the parents, there shall be no presumption or inference of law in favor of either. The
court has the discretion to award joint custody or sole custody. In determining best
interests of a child for purposes of determining custody or visitation arrangements,
including temporary custody and visitation, the court shall consider the following factors:
1) the age and physical and mental condition of a child, giving due consideration to the
child�s changing developmental needs; 2) the age and physical and mental condition of
each parent; 3) the relationship between each parent and each child, giving due
consideration to the positive involvement with the child�s life and ability to assess and
meet the needs of the child; 4) the needs of the child and relationships with other
members of the family; 5) the role that each parent has played and will play in the
upbringing and care of the child; 6) the ability of each parent to actively support the
child�s contact in relationship with the other parent and the ability of each parent to
cooperate in matters regarding the child; 7) the reasonable preference of the child; 8)
any history of family abuse; and 9) such other factors as the court deems necessary and
proper to determine the best interest of the child.
The court shall order the parties to attempt to resolve custody issues in
mediation, if deemed appropriate by the court. The court shall include as a condition of
any custody order a requirement that 30 days advance written notice be given to the
court and to the other party by any party intending to relocate and of any intended
change of address. Both parents have access to the academic, medical, hospital, or
other health records of the minor child unless otherwise ordered by the court for good
cause.
CV �20-107.2, and �20-124.1 to 124.6. WASHINGTON
The court shall approve the parenting plan of the parties or make its own order for
a parenting plan, including: 1) dispute resolution process; 2) allocation of
decision making authority; and 3) residential provisions for the child. The court may preclude or
limit any provisions of the parenting plan if the court finds it adverse to the best interest
of the child. With respect to approving the plan for residential provisions, or ordering its
own plan for residential provisions, the court shall make residential provisions for each
child which encourages each parent to maintain a stable and nurturing relationship with
the child, consistent with the child�s developmental level and the family�s social and
economic circumstances. The party�s residential time with the child shall be limited if the
court finds that the parent has engaged in any of the following conduct: 1) willful
abandonment; 2) physical, sexual, or emotional abuse of a child; or 3) a history of acts of
domestic violence. A parent�s residential time with the child shall be limited if it is found
that the parent resides with a person who has engaged in any of the foregoing conduct.
In resolving disputes about the residential provisions of a parenting plan, the court shall
consider the following factors: 1) the relative nature and stability of the child�s
relationship with each parent, including whether a parent is taking greater responsibility
for performing parenting functions relating to the daily needs of the child; 2) any
agreements of the parties; 3) each parent�s past and potential for future performance of
parenting functions; 4) the emotional needs and developmental level of the child; 5) the
child�s relationship with siblings and with other significant adults; 6) the wishes of the
parent and the wishes of a child who is sufficiently mature to express a preference as to
his or her residential schedule; and 7) each parent�s employment schedule. The
Washington statute specifically states that the greatest weight shall be given to the first
factor - the child�s relationship with each parent including whether a parent has taken
greater responsibility for performing parenting functions.
RCW �26.09.181, �26.09.184. �26.09.187, and �26.09.191. WEST VIRGINIA
The court may provide for the custody of minor children, subject to rights of
visitation, as may be appropriate under the circumstances. In every action where
visitation is awarded, the court shall specify a schedule for visitation by the non-custodial
parent. The West Virginia statute which gives the court the power to determine custody
does not describe the facts which the court will consider in making the custody decision.
According to court decisions by the West Virginia courts, the guiding principle in matters
of custody determination is the welfare of the child. In cases of custody of young
children, the courts presume that it is in the best interest of young children to be placed
in the custody of their primary caretaker, if he or she is a fit parent. The trial court has
considerable discretion to determine what custody arrangement best promotes the
welfare of the child. Unless the best interest of the child requires otherwise, every final
decree and every modification order shall order the custodial parent to provide the
non-custodial
parent with all school and medical information regarding the minor child. The
custodial parent shall authorize school authorities to release information directly to the
non-custodial parent. The custodial parent shall arrange appointments for
parent teacher
conferences at times when the non-custodial parent can be present. The custodial parent is required to consult with the non-custodial parent regarding any
elective surgery, and as soon thereafter as possible for any emergency medical
treatment or surgery.
WV Code �48-2-15. WISCONSIN
In Wisconsin, the award of physical custody of a child is called �physical
placement.� The legal standard used by the Wisconsin courts to determine custody
issues is �the best interest of the child.� In determining legal custody and periods of
physical placement, the court shall consider all facts relevant to the best interest of the
child. The court may not prefer one potential custodian over the other on the basis of the
sex or race of the custodian. The court shall consider the following factors in making its
determination: 1) the wishes of the child�s parent or parents; 2) the wishes of the child;
3) the interaction and interrelationship of the child with his or her parents and siblings; 4)
the child�s adjustment to home, school, and community; 5) the mental and physical
health of the parties and the children; 6) the availability of public or private child care
services; 7) whether one party is likely to unreasonably interfere with the child�s
relationship with the other party; 8) whether a party engaged in abuse of the child; 9)
whether there was interspousal battery or domestic abuse; 10) whether either party has
or had a significant problem with alcohol or drug abuse; and 11) all other relevant
factors. If legal custody or physical placement is contested, the court shall state in
writing why its decision is in the best interest of the child.
Wis. Stat. �767.24. WYOMING
In granting a divorce, the court may make such award for custody of the children
as appears most expedient and beneficial for the well-being of the children. The court
shall consider the relative competency of both parents and no award of custody shall be
made solely on the basis of gender of either parent. If the court finds that both parents
have shown the ability to act in the best interest of the child, the court may order any
arrangement that encourages parents to share in the rights and responsibilities of rearing
their children after the parents have divorced. The court shall order custody in
well defined terms to promote understanding and compliance by the parties. The court�s
award of custody shall be crafted to promote the best interest of the child and may
include any combination of joint, shared, or sole custody as the circumstances may
require. At any time after the filing of an action for divorce, the court may require
divorcing parents to attend appropriate classes, not exceeding four hours in length,
regarding how to lessen the impact of divorce on their children.
W.S. 20-2-113. |
