Divorce doesn’t have to strip your parental rights from you. Whether you’re married or not, you — and your child — have certain rights that survive a marital split.
If you’ve suddenly found yourself a single parent, it wouldn’t be very easy for you or your child if those rights were ignored. Your child would feel confused and overlooked. (A child of 12 reacts differently to a one-parent home than a two-year-old. That two-year-old benefits from more frequent shifts between parents, while an older child will do well with weekly shifts back and forth.)
It is a good idea to understand what your basic rights are as a parent. Once you know these, it will be much easier for you to identify them during meetings with your attorney and in front of a family court judge. When it comes to expectations you have of your child, you also have some rights there. However, your child has some rights as well.
Basic Parental Rights
As long as you and your former partner are taking care of your child appropriately and ensuring that every need is met, you both have equal rights. These rights include:
- The right to custody
- Expect obedience and respect from your child
- Right to any earnings the child may make
- Sue anyone found guilty of either injuring or killing your child
Along with rights come responsibilities:
- Providing adequate supervision for your child
- Providing appropriate support for your child
- Ensuring the child’s needs are met
When your child is in your home, make sure that they are safe. Have sufficient, nutritious food available. Ensure that you have heat or cool air, depending on the season. You should have a regular supply of running water and electricity.
Supervise your child and make sure activities they are doing are safe. If you see them about to do something dangerous, stop them and redirect their attention.
Factors that Affect Child Custody
Who pays child support? It’s not always daddy anymore. Your circumstances may mean that you can receive child support from your child’s father, but you should understand the formula used by your court.
Several factors affect the custody of your child. These include:
- Age and gender—If your child is a boy, you’ll have to make sure he has sufficient privacy to take care of his personal needs. He’ll need his own bathroom and bedroom.
- Child’s age—An older child needs more space than a younger one. For instance, a fourteen-year-old shouldn’t share a bedroom with a second-grader. Even if you don’t have a room for every child in your family, the judge will keep this in mind. You may be directed to put two younger similar-age children in one room and reserve individual rooms for any older children you have.
- Number of Children—This affects who gets custody. If you have a larger home with more children, the judge may decide to give you primary custody. Creative rooming arrangements may not go over very well if you have a one-bedroom apartment. Each child should have a space of their own.
- Your circumstances—These include your financial situation and age. If you are a grandparent with custody, you may not have as much money to use on a larger home. If you pay child support, you may not be able to afford a larger home. As long as you can prove that you’re doing your best, the judge will take this into account.
- Child’s ability to adjust—It may be hard for your child to adjust to a smaller home or bedroom. The judge will consider this in making a custody decision. Over any of these, the judge will think of the best interests of the child.
- Safety—Both your home and neighborhood should be safe. If there’s any risk of harm to your child, this can affect your ability to have your child stay overnight with you. If you are thinking of moving, do some basic research before signing any leases. Have any crimes taken place? Have any of these been homicides? (Yes, seriously.) Pull up the sex offenders registry online and see if any offenders live in or near neighborhoods you’re considering. You’ll have to answer these questions to the judge and, if any of these factors are present, it can hurt your bid for custody.
Two Kinds of Custody
You have two kinds of custody to consider: physical and legal.
Physical custody means your child lives with you the majority of the time. If your child splits their time between you and your former partner, this is joint custody.
The second kind of custody is legal custody. Here, you have the right to make decisions about the needs of your child. As with physical custody, if you and your former partner share legal custody, it is joint legal custody. You’ll both be responsible for making (and agreeing upon) issues like religion, schooling, and healthcare.
If you have sole custody, you make all those decisions with no input from your child’s father.
It’s not always the mother who gets custody these days. Fathers’ rights are more on the front burner, meaning judges are taking the ability of dads to provide for the needs of their child. The judge is more likely to give custody of the child to the parent who has been the primary caregiver. That parent should also have good morals and be able to financially support the child.
Again, this comes down to the child’s best interests. If one parent has a history of being abusive or neglectful, it should be on the record. The judge may appoint an attorney for your child. This individual is known as a guardian ad litem. If the relationship between you and your former partner is full of conflict or if your child has been abused, this attorney looks out for your child’s needs during hearings.
Determining Child Support
This is where so many parents get tripped up. Child support is not their right. It’s the right of the child to be supported financially that everyone should keep in mind.
If you can provide anything toward supporting your child as the custodial parent, your former partner may also be required to pay a portion of their income to you on behalf of your child. It’s generally the parent who earns the most who pays child support. If your former partner says he’ll give up visitation rights so he can avoid a child support obligation, he’s making a big mistake. He will still be expected to pay something for your child, even if he decides he’s not going to visit with your child.
Keep Visits Easy and Friendly
Whether the relationship between you and your ex is strained or not, your child deserves a minimum of drama when coming back into your home or going to dad’s home. It’s definitely much easier on their emotions.
Transferring your child from your home to your former partner’s home doesn’t have to be fraught with tension. Instead, keeping the child’s emotions in mind, try to put aside the anger and resentment you may feel. When you meet your ex, smile and update him about what’s been going on—homework, recent illnesses or injuries, upcoming events.
You and your ex will be expected to switch back and forth regularly. Christmas, Easter, birthdays and Thanksgiving can be rotated between you and your ex.
Taking Care of Issues
You will also need to know what resources to use if issues affecting your child develop. Unfortunately, issues do develop. One parent may decide to pull some power moves and keep the child’s good clothing or shoes. The child support may not be sent regularly or on time.
Because you are your child’s advocate, you need to know where to turn if something is not happening the way it should be. Rather than approaching your ex with anger, let your attorney know. They will file the paperwork that brings your ex back into court to address any shortcomings. As far as child support, his wages can be garnished, funds can be removed from unemployment checks—or he can be put in jail.
Don’t withhold visits to your ex. Only the court can change a visitation schedule. Your ex doesn’t have the right to withhold child support because of any arguments, either.
About the Author: Kathleen E. Shaul is a highly-skilled divorce and family attorney based in St. Louis, Missouri. She has been practicing family law in St. Louis since 1995 and is dedicated to providing the highest quality legal representation for families. Visit her at http://www.kshaul-law.com/.