Though child custody issues most often arise between divorced or unwed parents, there are other situations which may give rise to a child custody dispute. Parents may become unfit to raise a child for a variety of reasons. Grandparents or other third parties may seek custody or visitation rights. The introduction of step-parents and step grandparents can create issues related to child custody.
Generally, biological parents, under Constitutional Due Process, have the right to the custody, care, companionship, and control of their children that cannot be taken away without due process. This constitutionally protected status, however, does attach simply due to the biological link between parent and child, and is not absolute. To gain protected status, parents demonstrate a full commitment to the responsibilities of raising the child. This is especially true for unwed fathers. Courts determine whether the status of the parent is protected on a case by case basis by scrutinizing the sufficiency of the relationship, taking into account any circumstance or conduct which could impact the present or future of the child. This same analysis is used to determine whether parties other than parents have standing to bring a child custody proceeding.
Parents usually lose their constitutionally protected status (if it was obtained) in situations where they are unfit to raise the child or act inconsistently with “shouldering the responsibilities” or raising the child. These issues are generally raised in a proceeding that comes before the child custody hearing. Factors that may lead to a finding of the parent being unfit include, but are not limited to:
– Substance abuse problems
– Failure to recognize child development problems
– Creating a risk of harm to the child
– Physical and/or mental instability
– Lack of financial support
Similar factors may be used to determine if parents have acted inconsistently with their duty to care for the child. Neglect, abandonment, voluntary relinquishment of custody, and allowing the creation of a parent like relationship between the child and a third party may all be viewed as acting inconsistently with a parent’s protected status.
When custody disputes arise between two parents, courts use the standard “best interest of the child.” In this situation, courts generally favor giving custody to the mother of the children, with the father getting visitation rights. This can vary greatly depending on the jurisdiction and the judge presiding over the proceeding. When a dispute involves a parent and a non-parent of the child, the courts have found that using the best interest of the child standard is offensive to due process if the parent has constitutionally protected rights to the care of the child. In this instance, the non-parent will be required to show that the parent is either unfit to raise the child, has neglected or abandoned the child, or, similarly, has acted inconsistently with the protected rights to the care, custody, control and companionship of the child. Grandparents, in most situations, are treated just as any other non-parent of the child.
An individual facing a custody dispute does not necessarily need a lawyer to dispute custody. However, hiring an experienced domestic/family law attorney can be beneficial. These attorneys understand what needs to be shown to improve their client’s position and have experience and knowledge in dealing with specific judges where they practice.