No divorce is easy, and those that require spouses to negotiate child custody and visitation agrees are often some of the toughest. Many parents fight hard to get as much time as possible with their children in the form of visitation and custody. However, there are conditions under which a judge may rule that a child should not be in the custody of either parent. While this situation is rare, many parents worry that it will happen to them, perhaps due to circumstances in their past. Learning more about the legal process of divorce and your legal rights as a parent will help you navigate your child custody negotiation should the court choose to place your children in the custody of a family member.
Child Custody and DivorceIn most cases, per a custody arrangement, a child will spend time with both parents. Courts always want to do what is in the child's best interest, and that typically involves creating a strong, supportive relationship with both parents. Nevertheless, there are cases in which a court may decide to give a parent only partial custody of a child, either during the divorce process, or permanently.
In extreme circumstances, such as child abuse or neglect claims, a court may make a determination to give the child’s relative custody until the matter is resolved, instead of the child going to a foster home. Giving the child to a member of the family will help them to maintain a sense of comfort and familiarity. Again, the circumstances under which this occurs usually involve some form of serious misconduct that would threaten the child such as abuse or neglect, drug use, illegal activity, or child abandonment.
Court Determinations Regarding Child CustodyDuring the divorce process or after a divorce is finalized, a judge must make the determination about child custody and visitation rights. However, before this decision is made, a court will sometimes appoint a guardian ad litem to formally evaluate the facts and conditions surrounding the child's situation in the homes of both parents, and make determinations on what would be in the best interest of the child. The guardian ad litem will make a recommendation to the court after an investigation regarding what they believe would be the best custody decision to ensure the child’s health, safety, and general well-being. It is important to note that many parents are concerned that a relative will receive custody, but again, this typically only occurs in serious circumstances when a child’s health or safety is in danger.
Granting Custody to a RelativeBecause the decision to remove a child from the care of both parents is a grave and serious one, the court must try to find a family member who would meet specific criteria to ensure the child's safety and well-being. The guardian ad litem must perform background checks, interviews with friends and family members, interviews with school faculty and neighbors, and home studies to prepare a recommendation for the court. Once a court has ruled that the parents no longer have the ability to care for the child because of safety concerns, the court will then look at the recommendations given by the guardian ad litem about the child's placement with a relative.
Regaining Custody of Your ChildSince granting a relative custody is a very rare and serious event, the decision is rarely irreversible. If a judge makes this decision to place a child in a family member 's custody, a parent will still be given the opportunity to reclaim custody of the children in the future. If a parent resolves and remedies their behavior and can show the court that they have created a safe environment for their child, then the court is likely to give a parent back custody. Finally, a court will always look at what is in the child's best interest, and they tend to favor allowing the child to interact and connect with both parents whenever possible and safe, even if they have removed official custody.
Contact an Experienced Family Law AttorneyYou may worry that your circumstances or your spouse’s comments regarding your parenting skills will cause you to lose child custody to your spouse or that custody will be granted to a family member. Consult with an experienced divorce lawyer at Arnold & Smith, PLLC in Mooresville, North Carolina at 704.370.2828. We can help you understand your legal rights. Contact us by phone or online today for your free consultation.