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家族法

"Reviewing Custody"

Reviewing CustodyAs blended families become steadily more prevalent, it is important that parents understand their rights and responsibilities. With youngsters out of school for the summer, custody agreements are on many peoples’ minds as noncustodial parents around the country exercise their legal parenting time (often called visitation rights).

If you are considering divorce, the custody arrangement may be the most important aspect of your divorce agreement. Divorce agreements dictate whether children live primarily with one parent (a sole custody arrangement) or split their time more or less evenly between their parents (a joint custody arrangement). In sole custody, one parent takes care of the child most of the time and makes major decisions about the child. That parent is usually referred to as the custodial parent. The other parent is the noncustodial parent. Unless he or she is deemed a danger to the child’s welfare, the noncustodial parent is granted a right to parenting time.

Situations in which both parents share in making major decisions about the child and both parents spend substantial amounts of time with the child are known as joint custody arrangements.

When parents cannot agree between themselves about the custody of their child, the court decides. Courts base their decisions on an assessment of the best interests of the child. Factors affecting the courts’ understanding of children’s best interest are often listed in states’ family law statutes, domestic-relations statutes, and earlier court decisions.

The wishes of a child can be a factor in custody decisions. Though some courts will not consider the preferences of a child under seven, an older child’s expressed preferences are taken seriously by the court.

If you are already divorced, and recent changes in your or your ex-spouse’s circumstances makes a review of the custody arrangement necessary, courts do have the power to make changes. A parent seeking to modify custody through the court against the other parent’s wishes must show substantial change in circumstances since the last custody order.

In order to discourage parents from constantly litigating custody, some states apply a special standard for custody modifications sought within the first year or two after a prior custody order.

If both parents wish to voluntarily change custody or visitation schedules, they may do so without obtaining a court order. However, if the parent receiving custody or more visitation wants to protect the changes from future reversal, it is best to obtain a court order to that effect. Additionally, informal changes in custody do not affect a parent’s support obligation-only the court can change court-ordered child support.

If you and your spouse have already decided to divorce, it may be worthwhile to get a legal separation first. A legal separation can be an agreement signed by both parties, an order of the court, or both. The legal separation articulates rights that can be enforced by a court while a divorce is pending. These rights might include child support or allocation of time with children, among other things.

While it is possible to get divorced without the help of a lawyer, this is never advisable when children are involved. Even amicable divorces may require an attorney’s hand to assure that custody issues are treated fairly. Talk to your lawyer before signing any custody agreements or if you feel you’d like to change your existing agreement.

(Summer 2007)

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