Child Custody

Question 1

Initial Custody Determination Primary Test—Home State Jurisdiction

Answer 1

A court has jurisdiction to initially enter or modify a child custody or visitation order if the state:
* Is the child’s home state, or
* Was the child’s home state within the past six months and the child is absent from the state, but a parent or person acting as a parent (that is, a guardian) continues to live in the state

Question 2

Modification of Existing Decree

Answer 2

The issuing court has continuing exclusive jurisdiction. Another state can only exercise jurisdiction if:
* No child or parent (or persons acting as parents) continues to reside in the issuing state, or
* The child no longer has a significant connection with the issuing state and substantial evidence relating to the matter is no longer available in that state

Question 3

The Best Interest of the Child Standard

Answer 3

The standard applied in awarding custody and visitation is the best interest of the child. Factors considered in making that determination
usually include:
* The wishes of the parents (Note: Parents have a constitutionally- protected right to care, custody, and control of their children.)
* Child’s preference (Preferences of children under the age of 8 are generally not considered, but preferences of children over the age of 12 are given great weight. Questioning of the child typically
occurs in the judge’s chambers.)
* Child’s relationship with parents, siblings, and others involved
with parents
* Child’s adjustment to home, school, and community
* Parties’ mental and physical health
* Who has been the child’s primary caregiver

Question 4

Joint Custody Factors

Answer 4

consider:
* The fitness of both parents
* Whether the parents agree on joint custody
* The parents’ ability to communicate and cooperate concerning the child’s well-being
* The child’s preference
* The level of involvement of both parents in the child’s life
* The geographical proximity of the two homes
* The similarity or dissimilarity of the homes
* The effect of the award on the child’s psychological development
* The parents’ ability to physically carry out the joint custody order

Question 5

Custody to a Nonparent

Answer 5

In disputes between parents and third parties, the decision does not rest solely on the child’s best interest. A natural parent has a constitutional
right to raise their child. Absent voluntary relinquishment, the parent is entitled to custody unless the nonparent can show that it will result in harm to the child or that the parent is unfit. However,
based on special circumstances (such as abandonment, neglect, or abuse), a court may find that the biological parent has lost the right to
rear the child, and the nonparent should get custody

Answer 6

MODIFICATION OF CUSTODY DECREES
Custody orders are always modifiable. The burden of proof is on the party seeking the change.
Generally, custody awards will be modified only if there has been a substantial and material change in circumstances affecting the child’s well-being. Some states require a certain amount of time to
elapse between the prior custody order and a request for modification, unless the existing arrangement is harmful to the child. As always, the child’s best interest is the overriding concern