When a judge makes a decision regarding child custody and visitation, the decision becomes an official court order. A child custody order is enforceable by the court, as well as by law enforcement should it become necessary. Changes to the provisions of a child custody order must be submitted to the court, and a new or modified order issued. To explore this concept, consider the following child custody order definition.
Definition of Child Custody Order
- An order of the court specifying the custody and visitation arrangements concerning a minor child.
Purpose of a 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.
Obtaining a Child Custody Order
Whether the parents have reached an agreement, or can’t even speak to one another, the first step in obtaining a child custody order is for one parent to file a motion with the court. In most jurisdictions, the necessary documents are available at the clerks office of the local family court. The exact procedure that follows depends a great deal on the specific situation. For example, a couple filing for divorce may file the child custody documents at the same time. A mother may need to file a petition for paternity if the child’s father denies his responsibilities.
While the issue of obtaining a child custody order will be addressed during a divorce, it is not necessary to get a divorce to obtain a custody order. In the eyes of the law, both parents have a responsibility to financially provide for their children. When a child custody order is made, the issue of child support will be addressed by the court.
Temporary Child Custody Order
The process of obtaining an order for custody and visitation takes time. In a situation in which the parents cannot agree how the children should be cared for during that brief process, the court may issue a temporary child custody order. A hearing will be held so the court can determine what is in the children’s best interests. This often results in the court ordering the children to remain in their familiar home, to be cared for by the parent who previously provided the most care for them.
For example, Kate and Robert cannot agree about custody and visitation when they file for divorce. Robert works 40-50 hours per week, while Kate works part time so she can care for the children after school. The court is likely to order the children to remain in the family home with their mother, who has been their primary care provider, until a permanent custody and visitation order can be made.
Obtaining a Temporary Child Custody Order
The process of obtaining a temporary child custody order begins when a parent files a motion or petition for child custody and visitation. The petition outlines the parent’s wishes and it contains information relating to visitation with the other parent. If that parent believes the children are unsafe with the other parent, he or she should specifically state this in the motion. After filing the petition, the parent will receive a hearing date, which usually takes place within 60 days of the request.
In cases of domestic abuse, an emergency hearing can be requested, so that the court can place the children out of harm’s way. At the hearing, whether a regularly schedule hearing, or an emergency hearing, the judge will hear both sides before making a temporary child custody and visitation order.
Enforceability of a Temporary Child Custody Order
Even a temporary custody order is enforceable by law enforcement, and remains in effect until a permanent order has been issued. In the event there is a serious dispute over custody, or one parent refuses to return the children, law enforcement officials can step in to enforce the provisions of the court order. Enforceability of a temporary child custody order requires each parent to keep a copy of the order where it is easily accessible.
Types of Child Custody
A number of terms exist related to child custody orders, which may become confusing. A physical custody order pertains to with whom the children will live the majority of the time. A legal custody order pertains to which parent has the authority to make major decisions involving the children’s life, including education, extracurricular activities and sports, religion, and healthcare. The system of family law leans on the position that children are best served by having frequent and continuing contact with both of their parents. Because of this, joint custody, both legal and physical, is the most common type of child custody, though the specifics of joint custody may vary.
Joint Physical Custody
Unless one parent is somehow unfit to care for the children, the court most commonly orders joint physical custody. The judge will specify in which parent’s home the children will primarily reside, and a schedule by which they will visit with the other parent. The goal is for the children to have quality time with each parent on a regular basis. This includes parental time during the work/school week, as well as recreational 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.
If the court determines that one parent is not able to properly and safely care for the children on his or her own, sole custody may be awarded to the other parent. This is often temporary, with orders for the non-custodial parent to accomplish certain things to become able to care for the children. Such orders often include parenting classes, anger management, AA or NA meetings, or professional counseling. Such a parent may earn the right to gain joint custody by providing proof of compliance, and an evaluation stating he or she is not competent. In this case, the judge may issue a modified child custody order.
Even incompetent parents with limited or supervised visitation have the right to see their children on a regular basis, and it is rare indeed for the court to place a prohibition against all visitation. Visitation may be supervised by another adult family, specified in the court order, or a professional child visitation supervising agency, whichever the court deems appropriate.
A parent that has shown that he is not only able to properly care for the children without supervision, but can’t make good decisions regarding the children’s lives, will often find himself locked out of the decision-making process. Sole legal custody helps ensure the children have some stability in their daily lives.
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.
Every child custody order also addresses the issue of visitation with the non-custodial parent. Visitation is generally ordered on a schedule that allows the children to spend quality time with each parent. Parents have input into the custody and visitation schedules, though if they simply cannot agree, the court representative will provide a schedule for approval by the judge. The visitation order also specifies with which parent the children are to spend holidays and vacations. Such a schedule is not engraved in stone, as the parents may work out these visits on their own. However, if there is a conflict, the parents should fall back on the court-ordered visitation schedule to avoid legal issues.
In the event supervised visitation is ordered, there is no leeway in the order to allow the non-custodial parent to visit without supervision. This type of visitation is ordered for the protection of the children. In some cases, the visitation order may specify a family member or friend who may provide the required supervision, or it may specify visits to take place at a professional agency. Such agencies charge a fee for services, and it is usually necessary for the visitation order to specify how those fees are to be paid.
Violating a Child Custody Order
Since a custody order is legally binding and enforceable, violating a child custody order can result in serious consequences. Violating a child custody order occurs in a wide variety of ways, which most commonly include:
- The custodial parent refusing to allow court-ordered visitation with the other parent
- The non-custodial parent failing or refusing to return the child to the custodial parent on time
- Either parent taking the children out of state or out of the country without permission from the other parent, or a court order
- Either parent refusing to allow the child to take his belongings back and forth between parental homes
- Exposing the child to dangerous situations
When a parent violates a child custody order, the innocent parent can contact the police for an immediate resolution to a bad situation. The police will need to see a copy of the custody order. If non-compliance becomes an ongoing issue, the innocent parent can file a motion for contempt with the court, which may result in a sole custody order if circumstances warrant. In such a case, the violating parent may:
- Be required to appear in court to face charges regarding the violation
- Be ordered to spend time in jail
- Lose any custody or visitation rights previously granted by the court order.
Modifying a Child Custody Order
Modifying a child custody order involves filing a motion, sometimes referred to as a “petition,” with the court. Such a motion must state what changes are being requested, and why. The other parent will be notified of the motion, and have an opportunity to respond prior to the hearing date.
A hearing will be held where both parties can present their arguments to the judge. The judge may enter a new order based on the requested modifications, if it is in the best interests of the children, or he may make a new order based on different modifications. Once a new order has been made, or a court-ordered modification has been approved, it becomes legally binding and enforceable, in place of the original order.
Termination of Parental Rights
Each state’s laws specify conditions under which termination of parental rights may be ordered. This is a very serious event, intended to protect the children. When a parent’s rights have been terminated, the children often remain in the care of the other parent, though sometimes it is necessary to remove a child from the homes of both parents. In the even both parents have lost their rights as parents, legal custody of the children may be given to an extended family member, or they may be placed in foster care. The most common reasons for termination of parental rights include:
- Emotional or physical abuse
- Sexual abuse
- Chronic drug or alcohol abuse
- Permanent mental illness
Related Legal Terms and Issues
- Authority – The right or power to make decisions, give orders, or to control something or someone.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
- Non-Custodial Parent – A parent who, by court order, does not have legal or physical custody of his or her child.
- Primary Care Provider – The parent who undertakes the most responsibility for a child’s day-to-day care, such as a parent who stays home to provide childcare.
- Child Visitation Supervising Agency – A public or private agency that provides professional supervisors, and a safe environment, for court-ordered supervised visitation.