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How to Get Custody

There are many different scenarios in which a parent (or close relative) will want to get custody of their child, usually during a divorce. These are almost always emotionally difficult processes, since the stakes are so high. Child custody decisions are generally supposed to be made in accordance with the child's best interests, which may or may not correlate with one or both parents' wishes. So while parents may work out a custody arrangement on their own, it still must be approved by the court. If you are involved in a custody dispute, you should get familiar with the process and try to understand just how these decisions are made.

Negotiating Child Custody Arrangements Informally

In the best-case scenario, parents will work together through informal negotiations -- with or without the assistance of attorneys -- to come up with a custody arrangement and parenting plan. Once the parties have arrived at an agreement, it should be put into writing (referred to as either a "settlement agreement" or "custody agreement," depending on your state). If the parents are able to agree on the terms -- and the court decides it is in the best interests of the child -- then it will be approved without the need for a dispute in court.

Using Alternative Dispute Resolution for Child Custody Decisions

Another way to avoid a courtroom showdown when confronted with a child custody dispute is to use an alternative dispute resolution (ADR) method, which includes mediation, collaborative family law, and arbitration. The advantage of using ADR over a traditional courtroom setting is that it tends to be much less adversarial -- with the goal of compromise rather than simply "winners" and "losers." But in order for ADR to truly work, the parents must be willing to work together in order to reach a solution that's best for the child.

Mediation and collaborative family law are the most commonly used forms of ADR for child custody cases. In mediation, the parties to a given dispute discuss the situation, propose solutions, and then devise a plan on their own (although attorneys may be present). Collaborative family law is similar to mediation, with a few important differences. While the goal is to create a "win-win" situation for the parties, as in mediation, neither party may go to court. If court action is threatened, then the attorneys are automatically disqualified and the process is over.

What is a Parenting Agreement?

When the parties in a child custody dispute have hashed out their differences, compromised, and agreed to a set of rules for custody and visitation, they draft a parenting agreement. This often involves help and input from attorneys, even if it is agreed to outside of the courtroom. The parenting agreement may also be referred to as a "custody agreement" or "settlement agreement." Once this is written and signed by the parties, it can then be ordered by the court after a hearing.

Parenting agreements typically include the following:

  • Which parent (or guardian) has physical custody
  • Schedules for visitation with the noncustodial parent
  • Which parent(s) has legal custody
  • How future changes to the agreement will be handled

The Child Custody Hearing

Most child custody hearings are relatively informal. The judge will ask each party several questions to determine whether or not they understand the terms of the parenting agreement and whether any disputes remain. If the parties have come up with a valid parenting agreement, it will be finalized into a court order. If the parties have not reached an agreement, or are unwilling to work together, the judge will decide who gets custody.

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