The term “child custody” is one that’s often misunderstood, since there are various types of child custody. In addition to child custody, there are also forms of guardianship and visitation.
In order to better understand the term “child custody,” it is first necessary to define it. Child custody refers to the rights and duties of parents in reference to caring for their children. Each state uses different standards to determine which parent to award custody, but Delaware judges have determined that their standards will follow the child’s best interests.
And as any child custody attorney in Delaware knows, parents are the only persons who are permitted to petition the court for custody. Though guardianship may be awarded to other relatives or foster parents who petition the court, custody is the term which applies to parents.
A child custody lawyer in Delaware should know that there are certain legal requirements if a parent wants to file for custody in a Delaware court. The child must have resided in Delaware consecutively for six months prior to filing for custody or have been born in Delaware if the child is less than six months old. And the only way in which the court will make a custody decision is if the parents are living separately from one another.
Physical custody simply means that the children are physically present with the parent(s) — that is, they actually live with the parent(s). Sole physical custody (where only one parent has custody of the child) will often be awarded when one of the parents is not present or is abusive.
Usually, unless a court determines that one of the parents is unfit, custody is awarded in such a way as to allow the parent who doesn’t have custody to have a role in their child’s life.
While legal custody refers to the parent who makes decisions on the child’s behalf, residential placement refers to where the child lives and whether or not they have any visitation from the parent with whom they do not reside.
And Delaware courts’ determinations of how residential placement is structured will be decided on a case-by-case basis. A Delaware lawyer with expertise and experience dealing with physical child custody will know how to petition the court to award residential placement based upon the desires of their client. If the lawyer is representing the father who must frequently travel on business but wants to be involved in his child’s life, the lawyer may argue for the father to have visitation with the child when he is home from trips, even if the child has primary residence with the mother.
The goal of the court is to work with the schedules of the parents so that the child is able to bond with them, which will allow the child to feel that they have stability in their life. Unless there are extenuating circumstances where one parent has been involved in domestic violence disputes or is mentally ill, the court generally orders both parents are to be involved in the child’s life and must have frequent and meaningful contact.
A parent who has legal custody of the child has the ability to make legal decisions regarding issues that will have an impact on the child. This parent will be able to make decisions about how a child is brought up and possibly even decisions that may determine the well-being of the child. These decisions will include how the child is raised, what type of religion they are exposed to, where they are educated and what type of medical care they receive.
One instance in which sole legal custody might occur is when the parents are divorced, and a significant reason behind the divorce is the addiction and substance abuse of one of the parents. In this particular case, the other parent may request to have sole legal custody of the child. If the court grants their request, they alone will have the ability to make decisions about important issues regarding raising the child. The other parent would then have no authority to make these decisions, and the parent with sole legal custody would not need to consult with him prior to making decisions.
Generally speaking, courts will rarely order sole legal custody. The award of sole legal custody will likely only occur when the non-custodial parent has issues with substance abuse, mental illness, domestic abuse or some other extraordinary circumstance.
And, specifically in Delaware, the court will usually prefer to have both parents involved in making decisions for the child. A Delaware attorney who is familiar with the concepts of legal child custody will know that, even in the rare case that a court awards sole legal custody, the non-custodial parent has a right to obtain information about the child regarding their healthcare or schooling. And if the non-custodial parent believes that the custodial parent is making poor decisions about the child’s upbringing, they may be able to petition the court to reduce the custodial parent’s authority to make those decisions.
Joint Legal Custody
Joint legal custody expands upon the concept of legal custody and allows both parents the right to make legal decisions regarding issues that impact the child. If there is a dispute between the parents as to what to decide in a certain issue, a court may intervene to settle any disputed matters. Most states are more likely to award joint legal custody rather than sole legal custody because of the best interests of the child. One important aspect of joint legal custody means that, if this applies, and one parent leaves the other parent out of the process of making a decision regarding the child, they could be held in contempt of court.
Delaware is very similar to other states. As every legal child custody lawyer in Delaware knows, courts in Delaware prefer to permit both parents to be involved in making decisions regarding the upbringing of their children.
Residential Custody Arrangements
Residential custody arrangements simply means that physical custody is joint and is shared by both parents. In this case, the child or children will spend time living with both of the parents.
If a child is spending an equal amount of time with each parent, it is possible that the court may award the parents joint physical custody, which would then legally bind them to equally spend the same amount of time with the child. Courts have increasingly become conscious of ensuring that children spend an equal amount of time with each parent.
The court will consider the best interests of the children in determining whether a shared residential arrangement is appropriate. Delaware lawyers proficient in child custody matters will know what factors are the strongest to argue for you.
And according to knowledgeable child custody attorneys in Delaware who may advocate joint legal custody agreements, courts which award joint legal custody won’t necessarily award joint physical custody.
Pros and Cons of Joint Legal Custody
While courts prefer to offer the child stability by having both parents involved in making decisions for the child, there are certain advantages and disadvantages to this practice. If both parents are making health care, religious and schooling decisions for the child, the child may experience the stability of having them both in their life to show that they are both equally concerned about matters that are important to the child.
The problems occur when the parents disagree, and one parent decides to make a decision without the knowledge of the other parent. If the court steps in and holds the parent in contempt for making a decision without the knowledge of the other parent, the penalties for contempt would be extremely disruptive to the stability of the child, thereby thwarting the efforts of the court to maintain stability for the child by granting joint legal custody.
Pros and Cons of Shared Residency
Shared residency is a concept that can definitely provide security to a child who knows that they will not be cut off from one parent simply to have visitations with them. It enables a child to continue bonding with both parents, especially as they grow older, when the bonding process becomes even more important.
And shared residency is a concept that will work well if both parents can get along reasonably well. Problems arise when parents are constantly fighting and they continue to argue about whether or not the other parent was late in dropping off or picking up the child or if they are constantly criticizing or attacking the other parent’s lifestyle or possibly new significant other.
Repeated bickering may be even more disruptive to the child than living in a contentious household prior to the divorce. Furthermore, if the bickering becomes significant enough, one or both parties may petition the court to amend the custody agreement, possibly creating more angst for the child and offering less stability than if the court had previously granted physical custody to one parent.
Grandparent Visitation and Third-Party Visitation
While the court order of shared residency is based upon the standard of the best interest of the child, so is the idea of visitation by a grandparent or third party. Though there is a packet which grandparents or third parties may complete in order to petition the court for visitation, success in gaining visitation may be more likely if the party petitioning the court seeks the advice of a grandparent visitation attorney in Delaware who understands third-party visitation. Reasons for a grandparent seeking the advice of a lawyer in Delaware when considering visitation include the following:
- Grandparents must show that they have had a “substantial and positive prior relationship with the child.”
- They must be able to show that the visitation will be in the child’s best interest.
- A parent will need to be part of the following: they consent to the visitation, the child is dependent or abused in the parent’s care, the parent has died, or the parent’s objection to the visitation is unreasonable and the grandparent or third party has proven, under the preponderance of the evidence standard, that their visitation will not interfere with the relationship between the parent and child in a substantive manner.
An attorney will be much more capable of crafting a legal argument to meet these standards than a layperson, so it is very important that a grandparent or third party who wants to have visitation consults an attorney, especially if the parent objects to the visitation.
Additionally, there are standards by which the child’s best interests are determined. They are:
- The wishes of the child
- The wishes of the child’s parents as far as the custody and living arrangements of the child
- How well the child has adjusted to their environment, including community, home and school
- How well the child interacts with those persons who are living in the child’s home
- The manner in which each parent has satisfied their required parental rights and responsibilities
- The quality of health of those involved, including both physical and behavioral health
- Whether or not there is any evidence that domestic violence has occurred
- Whether anyone in the household has a criminal record
As there are sometimes instances where grandparents didn’t know they had a grandchild until after that child has been adopted, the sad truth is that the rights of those grandparents are terminated upon adoption. If a parent’s rights are terminated, whether it is voluntary or involuntary, grandparents or third parties may step in and seek visitation as long as the child has not yet been adopted. And if there are agreements established regarding visitation prior to a parent terminating their rights, these agreements may be considered valid by the court.
The good news for Delaware grandparents is that a recent Delaware Supreme Court case, Samuels v Jowers, upheld the lower court decision where the maternal grandmother and great-grandmother were granted visitation rights against the wishes of the father. Though the visitation was minimal and only totaled one afternoon per month, the court considered the fact that the twin granddaughters had either lived with these maternal grandmothers or had regular contact with them during the first four years after they were born.
As a grandparent who is applying for visitation rights should consult an attorney, so should someone who is seeking to establish guardianship of a child. A guardianship attorney in Delaware will best be able to navigate the legal system to provide an excellent legal argument for guardianship. There are a couple differences between the rights and responsibilities of guardians and parents. For example, someone cannot sue a guardian for deeds committed by their child. Guardians may have their legal rights limited after petitioning the court, but parents may not.
A lawyer cognizant of guardianship in Delaware will be aware that, even if someone is granted permanent guardianship in Delaware, there is no infringement on the parents’ parental rights. This is where guardianship is different from legal adoption.
A guardian is provided with a custody order that accompanies the guardianship. This means that the guardian is responsible to care for the child and provide for their well-being. And if someone is seeking to become a child’s guardian in Delaware, they will likely want to seek the advice of a Delaware lawyer who has experience handling guardianship cases. Experience and knowledge are essential, because there are very specific instances where someone can apply for guardianship. The guardian may be able to collect child support from the parent for a child for whom he has guardianship — a rather unusual occurrence.
Rights that a guardian has regarding the child include the right to make decisions about the child’s education, make decisions about healthcare, including medical treatment, seek representation for the child in matters before the court, determine where the child will live and decide what type of upbringing they will have.
Parents have the right to limit the decisions a guardian is making if they believe that the guardian’s decisions are inappropriate or not in the best interests of the child. Parents may limit or rescind a guardian’s decision-making authority by petitioning the court to do so. However, once a petition is filed to rescind guardianship, the burden of proof is shifted to the guardian after a preliminary showing that the guardianship is no longer necessary for the reason established, to show that the child is neglected while in the parents’ care and that the best interests of the child are to stay with the guardian.
Get Help Today
Because of the complexity of the various legal actions involving and related to child custody, as well as the varying standards of proof, it is very important to seek legal advice if you are involved in any type of child custody dispute.
The experts at Doroshow, Pasquale, Krawitz, and Bhaya are both knowledgeable and experienced in the matter of child custody law, with over fifteen years of experience handling a variety of custody issues. Our firm was founded on the idea that obtaining quality legal advice shouldn’t be limited to those persons who have access to law firms in large cities.
Anyone in Delaware who is seeking advice regarding child custody matters should contact Doroshow, Pasquale, Krawitz, and Bhaya. Our legal consultation will provide you with the insight and expertise that is most valuable when seeking a highly specialized competent attorney.