Child custody laws are established by each state and govern any case where the custody of a minor child is in question. Courts use the Best Interests Test when determining child custody matters, meaning they enter custody orders that meet the child's needs and interests, and not necessarily the interests of the parents or guardians.
Custody Allocations
Courts typically award both legal custody--the right to decide how the child gets raised, and physical custody--the right to have the child live with you. Parents, whether married or unmarried, have a presumed right to custody of their children. This means that unless proven that awarding custody to either parent harms the child's best interests, the court presumes both parents have custody rights. For example, Kansas Statutes Annotated 60-1610 allows courts to grant both joint legal custody and sole legal custody. If the court grants sole legal custody, it must make specific findings about the child's best interests and enter them into the record. Physical custody--residency as it is called in Kansas--is then awarded on the basis of a parenting plan proposed by the parents or issued by the court. This plan details the residency responsibilities and rights of each parent.
Temporary Orders
Custody cases can take a long time before reaching a final resolution. The children must be cared for during that time and the parents must be clear about their parental rights. Because of this, courts hearing custody cases have the power to issue temporary orders that apply only during the custody process itself. For example, Ohio Revised Code 3109.43 grants the court the right to issue temporary custody orders in any case where child custody is an issue. Any party can ask for temporary orders, and the court can grant them without holding a hearing.
Mediation
Many states allow courts to recommend or order mediation in child custody cases. Unlike a court proceeding, custody mediation does not usually involve lawyers, trials or the complicated procedures and requirements involved with them. In a mediation, the parents meet with a mediator in an attempt to reach an agreement between themselves. For example, Florida Statutes 61.183 allows the court to refer any child custody case to an approved mediator. If the couple reaches an agreement, the mediator then presents the proposed custody order to the court and to each party's attorney. If both parties agree that the agreement is acceptable and the judge finds it is in the best interests of the child, the court can adopt the mediation agreement end enter it as a court order.
