Child Custody

Where Do We Start?

Parents faced with a child custody dispute have many pressing questions. What are my chances of getting custody? Is joint custody an option? How much visitation is allowed to the non-custodial parent? Will the visitation be supervised? Those are just some of the issues that the parents are confronted with. Many of those questions are not easily resolved. However, here are some basic points that every parent should be aware of.  

Doesn't the Mother Automatically Get Custody?

Each parent has an equal right to custody. It is well known that mothers get awarded custody more frequently then fathers, because mothers tend to have a closer relationship with the child and be more involved in the child’s needs, especially in the child’s early age. This is even more true regarding most unmarried couples.

However, the court will never automatically award custody to the mother, because it would be unconstitutional to consider a parent’s sex in determining custody. The court's job is to apply the facts of your particular case to the factors developed by the courts to determine what's in the best interest of your child.

Which Parent Gets Custody

There are a number of factors that the court considers in determining custody. The law regarding those factors is constantly changing.

Experience has shown that the parent who is the primary caretaker of the child is more likely to get custody. The fact that one parent works and the other does not isn't necessarily an indicator that the non-working parent is the primary caretaker. Rather, the court examines the evidence of how the working parent contributed to the child's upbringing and whether the working parent can provide a stable environment for the child. Past and future ability to take care of the child is just one of the factors that the court considers in making a custody determination.

Types of Custody Arrangements

There are several types of custody arrangements.

Temporary Custody Temporary custody is awarded to a parent for the duration of the court proceeding.
Sole Custody In sole custody, one parent gets physical residence with the child and all decision making.
Joint Custody There are many types of joint custody. Parents can share decision making and physical residence. Joint Custody is only awarded when it is shown that parents can cooperate with each other in performing their duties as parents.


Visitation Rights

Once one parent is awarded custody, the other parent is awarded visitation, or what is now becoming known as “parenting time” in some courts. If Courts almost never take away visitation, although it is done on rare occasions, such as when a parent in question abused the child in the past or is mentally ill in a way which will cause emotional trauma to the child. Having a criminal record or being in prison is not sufficient to take away a parent’s visitation.

If the court feels that it is best for the child to not spend time alone with a visiting parent, the court might order supervised visitation. Visitation is usually supervised by a social worker or a court-approved relative or friend of the custodial parent.

Unfit Parent

Unfit Parenthood is a very serious accusation. It puts the accused parent in danger of loosing custody and having limited and supervised visitation. Unfit parenthood is a "make it or break it" issue in child custody.

Child's Wishes

If the child is old enough, the child is asked which one of the parents he or she prefers to live with. The child's preference is not binding on the court, but depending on how convincing the child is, and what the child's reasons are, the court may consider the child's preference.

Guardian ad Litem

Sometimes, a court appoints an attorney to represent the child, called a guardian ad litem. The guardian ad litem is prohibited from advocating for any of the parents' position - he or she purports to represent the interests of the child. In the end, the child's living arrangements are determined by the court; not by the parents, and not by the guardian ad litem. It is the job of your attorney to argue with the other side's counsel, and sometimes even with the guardian ad litem, to prove to the court that you having custody is in your child's best interest.

Splitting Up Siblings

Courts are reluctant to split up siblings by awarding custody to different parents, because it is widely believed that it is in the best interest of the child to have the emotional support of siblings.

Custody to Non-Parents

When the court finds that both birth parents are unfit to take care of their children, it will award custody to third parties, typically close relatives of the child, such as grandparents.

Court Needs to Approve the Agreement

Child custody is an issue that cannot be completely resolved by an agreement between the parents. Even if parents agree to a custody arrangement, it still needs to be reviewed by a judge, who will apply a number of statutory factors to make sure that the custody and visitation resulting from the agreement is in the child's best interest. For example, the court will not allow joint custody for parents who have shown an inability to communicate well with each other.

This Firm’s Goals

This firm's first and foremost goal is to settle child custody disputes out of court, to find a flexible parenting plan that both parents can be comfortable with. We will work with both parents to achieve a balanced life for the parents and a stable and loving environment for the children. Understandably, this goal is not easily achieved. In cases where the parents are not able to share custody of the child, we will fight hard to achieve the best possible custody arrangement for his clients, even if at the other side's expense.

If you feel that the other parent is trying to take the child away from you, or that you are unable to trust the other parent with the proper upbringing of the child, it might be time to consider taking serious action.


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When you are trying to get back at your spouse, posting pictures of drinking or drug use is not a good idea - it can be used as evidence of being an unfit parent.

Albert Gurevich, Esq.