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Determining Physical Custody – How Does the Court Decide Who Children Live With?

posted by DNA Identifiers @ 12:32 PM
Friday, September 11, 2009

By Ed Brooks

If there is one subject that tears at a parent’s heart it is the issue of custody. Determining who gets custody and visitation is different in every case. There is no exact formula to follow, but there are guidelines and principles you will want to follow to make sure that your child gets the best possible arrangement.

I often hear people discuss custody when they have no idea what the meaning of the word is. Is it any wonder then that people are so confused and scared about this? So let’s define what we are really talking about here. There are two types of custody that the court considers: (these are generalizations, not legal definitions)

* Legal Custody – The right to make decisions regarding education, medical care, dental care, and religion.

* Physical Custody – This is the right pertaining to where the child typically resides.

When both parents have these rights it is considered “Joint” Legal or Physical Custody. Even if the living arrangement isn’t an equal split, the parent with less time can be deemed to have Joint Physical Custody.

No matter what type of Legal and Physical Custody (sole or joint) are granted the visitation schedule needs to be worked out. What most people are talking about is the visitation schedule (sometimes referred to as a parenting plan) not custody. While custody does have certain rights, parents almost always have the right to visitation with their children.

First things first. If the parents can come to an agreement, they can draw it up and the court will likely accept it as is and simply file it because it meets the needs of all parties and the court doesn’t want to interfere if it isn’t needed. However, if the parents can’t come to an agreement, the court considers how much visitation time a parent will receive, and is guided by the “best interests of the child.” This is where you get do your homework and really build your case. If the child is an infant and the mother breast feeds, fathers’ visitation is likely to be short daytime visits. If one parent lives out of state, the visits are likely to be holidays and summers. If the parents live close to each other, the child is healthy, 7 or 8 years of age or older, and both parents work normal schedules, it is highly likely that an almost equal schedule can be reached.

Finally, let’s look at how the child’s wishes affect the outcome. It is a myth that if a child is 12 the court will do what they want. There is no magical age and no guarantees. When the court interviews the child, they do so privately. What the child says is kept private and is not shared with anyone. The court will take into account the situation of both parents, the age of the child and how mature they are, and what the effects of the child’s wishes would have on the relationships of the child with both parents.

You can see that there are many factors that the court must weigh before making a decision. There are no hard and fast rules and no one can predict the outcome. But you can put forth a reasonable argument based on your circumstances if you know what the court is looking to accomplish.

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2 Responses to “Determining Physical Custody – How Does the Court Decide Who Children Live With?”

  1. garrett jester says:

    Hi,
    Im kinda new at this stuff. my girlfriend and i just had a baby boy. Hes 3 weeks, to the day. we moved with her mother when we found out. Things were ok, Then got rougfh! I moved from our house to theres, and gave up all we had. Im a great guy so im told. Ive always keep a job, and took care of her for 2 years. Paid bills,food, and anything in between even got her a phone on my plan. she got 1 job for 6wks, Then lost it she never helped me. Anyways we moved over to her moms and about a month into living there they kicked me out. I had no where to go. So i sleep in my car for 3 months. Trying to figure out want to do. staying here and there, it sucked! keep my job gettin back on my ft, then the boy is born. And that was the best day of my life. I fell in love with him right of the bat. well the moment she found out she was prego i had our friends telling me she was “Active” with at least 3 guys when i would be at wrk. And the people that told me are Grown adults, not high school kids. Really close friends of mine and hers. So of course i wanted a dna test. Well she had the boy on june 9th 2010, i was there the whole time. but her mother and her made it where i could not go in with her. And could not see the boy after. I had to beg a nurse to let me hold him. And thank god for her, she snuck me in and i got to hold him. I felt on top of the world! Well she had to go to longview to get surgary, she wasent doin good. so she told me to stay with him. then i asked about the dna test. So they called her moms phone, and she answerd the call and pretended she was the babys mom. of course it couldnt have been. Because she was getting surgary. They made me leave, And told me leave him alone. At this time i was upset so i sleept outside his windows till i had to go. my friends were with me the whole time. So i need to know what can i do to first see if hes mine, and if he is Get custiody of him. theres alot i can tell you but over all, my hearts broke and i need legal help! thank you

  2. admin says:

    Hello Garrett,

    I am sorry but we are not able to give legal advice. We recommend you contact a family attorney near you. Depending on which state you are in we might have some useful links and information for you regarding your situation. We can absolutely help you with the DNA testing which would answer your questions about whether the boy is yours or not. Are you on the boy’s birth certificate? What state does everyone live in?

    Please let us know if we can help answer any questions.

    Best Wishes,
    The Staff at DNA Identifiers

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