The legal separation process involves unraveling the bonds of matrimony to the extent possible. Child custody can be one of the most emotional and contentious aspects of a legal separation. Ultimately, the court will take the responsibility of ensuring the best interests of the child are met. Because spending time with both parents is usually in the child's best interests, legal separation will likely mean spending less time with your children.
State Laws
Each state has its own laws on child custody and the laws of the state in which the separation is filed will influence if not control the ultimate determination of child custody. In most states the actual statues are contained in a separate family law code or in a section of the statutes on family relationships. Many states also have agencies that supervise child welfare and enforce payment of child support.
Separation Agreement
The terms of your separation from your spouse are ultimately codified into a document called a separation agreement. To a large extent, child custody can be arranged according to private agreement between you and your spouse. Generally, the court will only interfere when there is a lack of agreement about custody or if there is a reason to be concerned for the child's well-being.
Legal And Physical Custody
Two types of child custody should be contemplated by your separation agreement. Legal custody refers to a parent's right to make decisions about how the child will be raised, which includes religion, education and other activities. Most states are reluctant to terminate a parent's legal custody rights without good reason. Physical custody consists of providing day-to-day care for the child, including food, clothing and shelter. While physical custody is often shared, sole custody can be granted to one parent with limited visitation rights to the other.
Factors
When the court must make the decision about child custody, several factors can be considered. First and foremost, the court considers "the best interests of the child." Of course this is an ambiguous term the meaning of which is case specific. Usually the court will look to the mental and physical health of the parents for their ability to provide a nurturing and stable environment. Some states prefer to award custody to the parent more likely to afford access to the other parent and other relatives. If the child is old enough, the court may also consider their personal preferences.
Age And Gender
Many states still believe that infant and very young children are best served by spending their time predominantly with their mothers. Though this is usually not a statutory requirement, it is often applied by judges as part of the child's best interests. Only a slight minority of states refuse to take the gender and age of the child into consideration when awarding child custody. In those that do, such considerations may serve as a sort of tie-breaker when other factors are evenly balanced. More compelling factors, such as evidence of child abuse, drug abuse or violent crime, will certainly overcome any gender-based bias.
