Child Custody in Divorce Cases

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It has been observed that in case of partners seeking divorce, the welfare of their children is one of their primary concerns. This is particularly true if the children are less than 18 years of age.

The court is empowered to enter temporary and final orders pertaining to child custody. Depending on the best interests of the child, the court might award sole custody to a single parent or joint custody to both.

The granting of joint custody is based on the ability of the parents to cooperate on issues pertaining to the child's benefit. In this sort of custody, the child has primary residence with any one parent. The other parent is given visitation rights.

Termination of Child Custody in Divorce Cases

In Illinois, the court has the right to terminate the custody order it has previously awarded for any of the reasons mentioned below.

  • If the parent fails to safeguard the child from harmful circumstances
  • The parent is frequently cruel or neglectful towards the child
  • The parent has deserted the child for a period exceeding 3 months
  • The parent has failed to demonstrate a reasonable extent of responsibility, concern and interest regarding the child
  • The parent has abandoned the child

Child Custody in Divorce Cases when there is no court order

Let us take into account the following situation.

  • There is no court order regarding child custody
  • The parents are not married

Different states have formed varying laws to deal with this situation. In several states, if an unmarried woman delivers a baby, this woman is regarded as the sole legal custodial and sole residential parent of the child. However, in the future, the court reserves the right to designate another individual as the legal custodian and residential parent of this child.

In case of some states, a 'presumed father' can have custody rights. A person can become a 'presumed father' if he takes any one of the following actions.

  • Holds the child out as his own
  • Takes the child in his residence
  • Marries or attempts to marry the child's mother
  • Signs an affidavit of paternity

There are some instances when a man thinks that he is the father of a baby born without marriage. However, such a man should not try to take custody of the child directly. If the proceedings worsen, this man might be held under criminal charges.

Smoking and Child Custody

In a particular case in Georgia, the mother was addicted to smoking and after divorce it was found that her child had asthma. The court detected that this mother was smoking in the presence of her child. This implied that she had insufficient concern for her child. This reason was considered strong enough for a change in custody.

A majority of courts ponder over all the factors that affect the best interests of the child and then make a custody decision. It follows that only smoking would not be an adequate ground for alteration in custody. However, smoking would necessarily make an impact. When an ex spouse demonstrates that he/she has an intention of utilizing your smoking as a negative point in the custody decision, it is advisable that you do not smoke in the presence of the child.

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