Custody order and Child under Domestic Violence Act

May 16, 2022

Custody order

Notwithstanding any provision in any other applicable law, the Magistrate may, at any stage of the hearing, petition for a protection order or any other relief under the law or provision, granting temporary custody of any children to the offender, such person or person making a claim on his/her behalf and stating, if any, the terms and conditions of visitation of the respondent’s child or children. However, if the magistrate considers that any visit by the respondent may be prejudicial to the child or children interests, the magistrate must refuse to authorize such visit.

What is child custody order?

An order of the court specifying the custody and visitation arrangements concerning a minor child.

Purpose of child custody order

When a couple separates or divorces, it becomes necessary to come up with a plan on how to parent the children, including where they will primarily live, and when they will visit with the other parent. While it is possible for parents to simply come to an arrangement that works for them, the issue of child custody and visitation causes serious conflict for many couples. If there is no court order for custody and visitation, and conflict arises, law enforcement cannot step in and help. In a situation in which the parents have reached a custody arrangement, it can be submitted to the court and turned into a legally enforceable child custody order.

When parents clash, the court gets involved, often requiring the parents to attend mediation to work out a parenting plan. Once a plan has been approved by the family court judge, it becomes a child custody order. The purpose of a child custody order is to give parents a definitive plan to follow, even when they cannot get along.

Types of child custody

There are several terms regarding child custody orders, which can be confusing. A physical custody order concerns with who the children will live with most of the time. Legal custody orders involve parents, who have the power to make important decisions about their children lives, including education, extracurricular activities and sports, religion, and health care. The family law system is based on the view that children are best served by regular and ongoing contact with both the parents. For this reason, joint custody, both legal and physical, is the most common type of custody, although the specifics of joint custody can vary.

Joint Physical Custody

Unless the parents cannot afford to care for the children, the courts usually ask for joint custody. The judge will specify which parent’s home the children will primarily reside in and the schedule by which they will visit the other parent. The goal is for children to regularly spend quality time with each parent. This includes time spent with parents during the work/school week, as well as leisure time on weekends and holidays.

Joint Legal Custody

The law recognizes that parents have the right to participate in the raising of their children, making such important decisions as how the children will be educated and disciplined, how they will be educated, and what healthcare they will receive. Even in situations where joint physical custody cannot be ordered, the court may award joint legal custody, allowing the non-custodial parent, or parent with limited or supervised visitation to help make decisions for the children’s lives.

Sole Custody

If the court determines that one parent cannot properly and safely care for the children on their own, sole custody of the children may be given to the other parent. This is usually temporary, with an order for the non-custodial parent to do certain things in order to be able to care for the children. These ordinances often include parenting classes, anger management, AA or NA meetings, or professional counselling. Such parents can obtain joint custody by providing proof of compliance and assessing that they are incompetent. In this case, the judge can issue a modified restraining order.

Even incompetent parents with limited or supervised visitation of their children have the right to see their children on a regular basis, and indeed rarely do courts prohibit any visit. Visitation may be supervised by another adult family, as specified by the court order, or by a professional child visitation monitoring agency, as the court deems appropriate.

A parent who has demonstrated that he is not only capable of properly caring for his children without supervision, but also unable to make good decisions about the children’s lives, will often find himself excluded from the decision-making process. A sole legal custody gives the child stability in everyday life.

Determining Who Gets Custody

When the court becomes involved in determining issues of child custody, there are a number of issues to be considered. Each state has specific laws outlining these issues, every judge is required to make a decision that is in the best interests of the child. To that end, the court must consider:

The age of the child
The wishes of the child
The gender of the child
The relationship between the child and each parent
The ability of the parent to care for the child
The child’s ties to the school and community
The mental health of each parent
Any history of abuse, neglect, or substance abuse on the part of the parents
The willingness and ability of each parent to promote a good relationship between the child and the other parent

While historically it was common for physical custody to be awarded to the mother in nearly all situations, modern courts find that fathers are just as capable of caring for children. Fathers are now being award joint custody that closely splits time between the parents, or even sole custody when the situation warrants it. In rare cases, a judge will determine that neither parent is fit to have custody, so it will be awarded to a third party.

References

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May 16, 2022