Although there are some minor differences from one state to another, the major elements of child custody laws across the United States are largely the same. There are certain factors that affect child custody. These considerations affect both the establishment of child custody, as well as altering an existing custodial arrangement.
Best Interests of the Child
The primary factor that impacts child custody determinations in all courts across the United States is the doctrine of best interests of the child. The focus of all child custody orders is protecting what is in the best interests of the child. Considerations include which parent historically provided primary care for a child; the physical and mental health of the parents and the child; and which parent maintains a residence most appropriate to providing a home for the child.
Change of Residence
The intention of the custodial parent to move out of the jurisdiction of the court (typically out of state) affects child custody. If the noncustodial parent objects to the move, she legally can move to change custody. The law in all states considers a move that significantly impacts the noncustodial parent's parenting time a material change of circumstances that can warrant an alteration of custody.
Agreement of the Parents
Agreement of the parents directly affects child-custody issues. Provided the agreement does not run counter to the best interests of their child, it will be approved by the court. Such an agreement can run the gamut from altering the visitation or parenting-time schedule to changing custody from one parent to another.
Preference of Child
The manner in which the preference of the child is taken into consideration by the court varies from state to state. A majority of state laws permit a judge to consider a child's preferences after a child reaches a certain age or level of maturity. A commonly used age is 12 years. In states that use a relative maturity standard, the actual age is not as important as the reasoning ability of the child. A few states permit a child who is 16 or 17 the ability to make the final decision as to where she resides.
A parent who loses custody on a temporary basis regains custody once the situation that caused the interruption is resolved. For example, if a parent develops a health problem that prevents him from properly caring for the child, a restoration of custody occurs when his health improves.
On the other hand, if the court issues a permanent change of custody order, regaining custody is challenging. For example, a parent who develops a substance abuse problem and loses custody must demonstrate a material change of circumstances to regain his rights.