Every state has laws that allow for the involuntary termination of a parent's rights during a divorce. Essentially, when you and your spouse decided to terminate your marriage and potentially hire lawyers to represent your interests, the court views its role as protecting the best interests of the minor children. Each state has slightly different values when deciding what is truly in a child's best interest.
Parent's Rights
Parents have two basic rights over their child. Physical custody consists of the providing day-to-day care for the child, including shelter and food. Legal custody involves making decisions about how the child is to be raised, such as the schools they attend, the religion they practice and the types of activities in which they participate. Unlike physical custody, which can easily be divided, the issues pertinent to legal custody require participation and compromise between both parents.
Initial Presumption
Virtually all state courts begin with the presumption that a child is best served by having access to both parents. In fact, some states consider which parent is more likely to afford regular access to the other as a factor in awarding custody. Joint custody, a common outcome, is the condition in which both parents enjoy equal time with the child. Alternatively, one parent may receive primary custody with the other having only visitation rights. Sole custody exists when one parent has exclusive physical custody and, like primary custody, is only awarded when there is a good reason to deny physical custody to one parent.
Custody Factors
A variety of factors are weighed by a court when evaluating child custody. If one parent is incarcerated or mentally incompetent, they are likely to lose some or all of their parental rights. Many states also consider a conviction for sexual battery, domestic abuse or any crime against a child as strongly favoring a denial of parental rights. Absent such obvious indications, the court evaluates the existing relationships between the parents and child, and the parent's ability to provide financial and emotional support. If the child is old enough, the court may welcome his own opinion, though it will not be dispositive.
Gender And Physical Custody
Some states presume that very young children benefit from spending more time with the mother. Others may be inclined to award custody of older children to the parent of the same gender. The more recent trend, however, is to practice no gender bias whatsoever in any stage of the child's development.
Obligations
Even more important than the rights of parents are their obligations. Even a parent with no physical custody, if they retain legal custody, can be forced to pay child support. Though you and your spouse can make private arrangements for child support, the court will review such agreements before granting divorce to ensure the child's interests are adequately protected. Most states have strict guidelines that calculate the amount of child support based on the income of the parents.
