Obtaining sole custody of your children can be an added challenge, as the courts tend to feel having both parents in the lives of children is in their best interest. Most states will always take into account what is best for the child. There are, however, some cases where sole custody is necessary, and is, in fact, in the best interest of the child. The court will ultimately make this decision for you.
The Difference Between Legal and Physical Custody
First, there is a significant difference between legal custody and physical custody. Legal custody is the parent's right to make decisions for the child, like where the child will go to school, if he or she will engage in religious activities, and so on. Physical custody is where the child will live after the divorce. As you can imagine, there are a number of different combinations of custodial rights. For example, a parent may have sole legal custody, but not full physical custody. A parent can either seek sole legal custody, sole physical custody, or full sole custody.
Determining if Sole Custody is the Right Choice
You're probably reading this because you’re concerned for your child's well-being. But it's important to consider full sole custody carefully. Unless there is a history of violence, drug abuse, or neglect, it is usually not a good idea to prevent your child from having a relationship with the other parent. A family lawyer will come up with a plan that is best for your child and also agreeable between you and your ex.
How the Courts Determine the Child's Best Interests
If you've decided sole custody is best for your children, there are a several ways to obtain it. Don't assume the court will automatically grant your decision. You will be expected to submit evidence of why sole custody is best. Generally, the factors that have a heavy impact on a court's custody decision are:
• If your ex has a history of domestic violence.
• If he or she has a history of substance or drug abuse.
• If he or she has a past criminal record, especially if the record includes violent crimes, drug-related crimes, or sex crimes.
• If your ex was not present for an extended period of time.
While all of these factors are considered by the court, any one of them does not necessarily guarantee sole custody.
Ways to Obtain Sole Custody
Essentially, there are four ways to obtain sole custody of your children.
• Working out a parenting plan that includes sole custody at the preliminary hearing before your divorce. If your ex agrees to give you sole custody, the court will most likely approve it.
• Talking to a mediator if you and your ex cannot agree to a custody plan. A mediator is a lawyer who will help you decide how to obtain custody in the best interest of your child. The court will have the final say and will issue a court order enforcing the custody arrangement.
• If there is a history of domestic violence, you can file a restraining order, which will prevent your ex from seeing you and your child.
• If your ex isn't the biological father of your child, you can declare the father's paternity. Paternity dictates the rights the father has to his child. If your ex doesn't have paternal rights, you are more likely to get sole custody.
Speak with an experienced family and divorce attorney to discuss your options for obtaining sole custody.