Can My Spouse Take My Children When We Are Getting Divorced?

There are more than 23 million children in America that live in a single-parent household. Divorce is a difficult process for any couple, and it can be even harder when there are children involved. If your children are under 18 and you are getting divorced, then child custody is going to need discussion. It is important to understand that you are not alone, and that help is available for those who are struggling with both the emotional and legal aspects of the process of divorce.

Child custody proceedings can be complex, but the good news is that the whole process exists to protect the best interests of the child. If you follow the process correctly, then you will be able to reach an agreement with your spouse that ensures a reasonable level of contact for both parents - assuming, of course, that there is no safety issue involved that could put the child at risk.

What Child Custody Arrangements Are There?

When you get divorced, there are two issues that will need to be agreed. The issue of physical custody relates to where the children will live after the divorce, while the issue of legal custody refers to who has the right to make decisions about your child's upbringing.

In some cases, custody is shared. In other cases, the courts award one parent sole custody. In general, when it comes to physical custody the courts prefer to award joint custody, so that the children can have contact with both parents. In many states, this is the default ruling, and if one parent disagrees with this then that parent would need to prove why the child should not spend time with the other parent. Joint physical custody does not have to mean that the child spends half of their time with each parent. Usually, the couple will be expected to reach an agreement amongst themselves. If, for any reason, they are not able to do this then the courts may decide to impose a schedule.

Common schedules would involve either alternating weeks or months at each parent's house, and also alternating holidays. In the case of a low conflict divorce, joint physical custody is the preferred option because studies show that children who get to spend time with both of their parents will usually fare better than those who are able to spend time with only one parent.

High conflict divorces, where the parents are embroiled in bitter disputes, can be far more problematic and can leave children struggling a lot because it is too easy for the parents to fall into the trap of dragging their child into the conflict.

Sole Custody Is Sometimes an Option

There are some scenarios where a court will award one parent sole custody. In a sole physical custody arrangement, the children will stay with the custodial parent, while the parent that does not have custody will be given visitation rights. Depending on the reason for the sole custody award, the visitation may be supervised or unsupervised.

There are some practical benefits to sole custody. The child is able to stay at one house and therefore go to just one school and maintain bonds with friends and neighbors. Their routine is not disrupted by going to different houses every few days or weeks. However, it can cause issues for the non-custodial parent because they do not get to bond meaningfully with the child. Over time, the visits can start to feel like they are more of a 'fun time' than parenting time, and this can cause tension between the child and parents. One parent does the 'parenting' while the other parent takes the child out to play and is not seen as being involved with the more mundane parts of life.

Partly for this reason, sole custody tends to be awarded only in scenarios where the other parent is in some way dangerous or irresponsible. If one parent fears that the child would be abused or neglected, or if the child themselves expresses fear of the other parent, then this is something that would be taken into account. It is rare that visitation is completely stopped unless there is genuine fear of serious harm to the child. Violation of visitation rights is something the courts take very seriously. If you are a parent who fears losing access to his or her children, then you should speak to an attorney and get advice immediately. The law can be quite a minefield and it is important that you approach things correctly to ensure that your rights are upheld.

Legal Custody

The parent with legal custody has the right to make decisions about education, religious instruction and medical care. In most cases, the courts prefer to have both parents involved in these things and therefore award joint legal custody. There are some scenarios where they may award the sole legal custody to one parent. When this happens, that parent is able to make unilateral decisions about how the child is raised.

What Do The Courts Consider

Ohio divorce laws base their decisions on "the best interests of the child" as their baseline. Factors that they take into account include the living situation of each parent and proximity to the child's school. They also consider the relationship that the parents have with the child, and how willing each parent is to support the other parent's relationship. If the child is older, then the court will consider the child's own preference as well.

Another factor that the courts will consider is the age of the child. While this view is starting to change, in a lot of cases the courts will lean towards awarding custody of younger children - and in particular infants - to the mother.

The courts will want to ensure that the children go through as little disruption in their life as possible and will aim to choose a custody arrangement that ensures this. Of course, if abuse or neglect has happened, or is likely, then this will also be a major consideration.