Over the years, I have found that clients have many misconceptions about child custody, as well as misconceptions about their rights and obligations under child custody order after the divorce. It’s important to understand child custody laws and how they apply to your family after a divorce.
Some of the most common misconceptions are as follows:
- A judge will award a parent full custody of the children.
One of the top misconceptions I see, is that it is possible for one parent to have full custody. There is no such thing as full custody. There are always two parts to custody: Legal custody and physical custody.
Parents can have joint legal custody, which means they have joint decision-making about the major decisions in their children's lives. Or, one parent can have sole legal custody.
How the children divide their time between their parents is called physical custody. If the children spend more than 110 overnights with a parent, then the parents have shared physical custody. If one parent has less than 110 overnights, that parent is the non-custodial parent.
- A parent who has sole legal custody of the children can relocate to another state or another community in Alaska over the objection of the other parent.
Another common misconception about child custody is that a parent with sole legal custody can relocate to another state over the objection of the other parent. This is not the case.
It does not matter whether one parent has sole legal custody or the parents have joint legal custody. If a parent objects to the other parent's decision to relocate to another state, the court will have to decide if it is in the children's best interest to relocate with one parent or to stay in Alaska with the other parent. The same is true if a parent’s plans to move to another community within Alaska would make the parents’ current physical custody schedule impracticable.
For example, let’s say the parents have a primary physical schedule and the children attend school in Anchorage. The custodial parent wants to move to Homer and this would make the existing visitation schedule (every other weekend) impracticable and expensive. The parent could relocate to Homer, but the parent could not move the children to Homer over the objection of the other parent without a court ordered modification of the existing custody and visitation schedule.
- A parent who has sole legal custody can schedule children’s activities, which will take place on the other parent’s visitation time in part or in whole.
Another popular misconception is that the parent with sole legal custody can schedule activities for the children without regard to whether the activities occur on the other parent’s visitation time. This is not the case.
Neither parent can enroll the children in activities, which occur on the other parent's time – irrespective of whether the parties have joint legal custody or one parent has sole legal custody. The same is true as far as accepting invitations on behalf of the children to attend birthday parties, which occur on the other parent’s time.
- When a child reaches the age of twelve, the child can decide where he or she wants to reside.
I have had clients ask me if their children can decide where to live when they reach the age of twelve or some other set age. The answer is no. The statutory factors, which the court applies in deciding what custodial arrangement is in the best interest of the children, includes consideration of a child's preference.
There is a misconception that once a child has reached the age of 12, he or she can tell the judge where they're going to reside. While a judge will take into consideration the preference of a child, there is no set age where the child gets to make that decision.
How much weight a judge would give to the child's preference depends on the child's age, the maturity level of the child, and the reason for the child's wishes. Once a child reaches the age of fourteen or fifteen, a judge may be inclined to give weight to the child’s preference, but this is not always the case. The judge will still have to consider the maturity of the child and the reasons for the child’s preference.
Educate Yourself Before Making Assumptions
These are just a few of the misconceptions I have heard from parents going through a divorce where children are involved. It’s important not to make assumptions or to rely on the well-meaning, but possibly inaccurate advice of friends, relatives or co-workers about your child custody case. If you have additional questions about divorce and child custody law, contact me for more information.