There are consequences of being the non-custodial parent, such as not being able to take the child out of state without permission, nor the ability to make parental decisions about the child's education, religious training or medical care.
Courts may not hesitate to award physical custody to the father if the mother is deemed unfit (for example, due to alcohol or drug dependency, an unfit boyfriend or child abuse or neglect charges). It's understandable that there may be animosity between you and your ex-spouse, but sole custody shouldn't be sought unless the parent is a direct harm to the children. Even then courts may simply order supervised visitation, while still allowing joint legal custody.
Usually, when parents share joint custody, they work out joint physical custody according to their schedules and housing arrangements. If the parents cannot agree, the court will impose an arrangement.
Joint custody has the advantages of assuring the children continuing contact and involvement with both parents, and alleviating some of the burdens of parenting for each parent. There are, of course, disadvantages -- children must be shuttled around, parental non-cooperation can have seriously devastating effects on children and maintaining two homes for the children can be expensive.
Factors in Determining Custody
Alleged immoral sexual conduct on the part of a parent leads to a great deal of custody litigation and is considered relevant, if not a deciding factor, in the divorce proceedings of some states (depending on what state you live in, sexual orientation may or may not be an issue in custody matters)
Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions and peer relationships.
The guardian ad litem is an attorney. S/he has the right to request interviews with you and your children to learn more about the family dynamics. S/he gives a report back to the judge with a recommendation of who would be the best custodian of the children. The report is not the final say in the custody agreement but the judge will take the word of the guardian ad litem very seriously.
Your first order of business should be to discuss with your attorney the details of the order and what, if anything, your attorney knows about how the evaluator assigned to you usually works.
The court-appointed psychologist is not working for one side or the other. He or she is the court's expert, charged with the responsibility for advising the court about your children's psychological and emotional needs, the resources offered by each parent to meet them, and how a custody or parenting time arrangement might best be devised to meet those needs.
The best evaluators' main concern is figuring out how to establish the best fit between your children at this point in their development and the various proposed custodial environments and arrangements.
A good custody evaluation uses multiple types and methods of information gathering, usually including personal interviews; developmental histories; parent-child observations; psychological testing of the parents and children; review of school records, medical and psychiatric records, legal records and records from the home. It may also include interviews with neighbors, actual or prospective stepparents, teachers, babysitters, or others who know the family members well. Sometimes it will include a home visit. The evaluator tries not to place too much weight on any single source of information, instead waiting patiently until sufficient evidence from multiple sources converges to provide the framework for some well-supported opinions and conclusions.
These opinions and conclusions must be presented in a detailed report that explains both the evidence and the reasoning behind them. If either side considers the evidence or the reasoning inadequate, they can challenge the report in court and subject the expert to cross-examination. Ultimately, it is up to the judge to decide whether the evaluator's opinions are of sufficient value and weight to be considered in awarding custody and parenting time.
If a parent must leave the familial home (and wants to be the primary physical custodian), he or she should take the children and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without his or her knowledge. Family law judges frown upon a parent who removes the children from the home without seeking the court's recognition; a judge may order that the children be returned to the family home pending future proceedings to determine physical custody.
Are mothers more likely to be awarded custody over fathers?
Before going to court, try talking to your ex-spouse. Explain your financial situation and how it will affect your ability to see your daughter. If he or she insists on the move, court intervention may be inevitable. At that point, it may be worthwhile to consult a family law attorney to learn about the law in your state.
Modifications could be as simple as switching dates and times, or as severe as reducing the length and frequency of visits. Whatever you decide, you might want to note any lateness or no shows on a calendar then prepare a list in chronological order. This way, if you do go to court, you'll be able to document the severity of the problem. If this is a periodic problem, try to work out between yourself and your ex-spouse. Courts are reluctant to intervene unless it is a consistent and on-going problem.
If a state cannot meet one of these tests, even if the child is present in the state, the courts of that state cannot make a custody award. Also, a parent who has wrongfully removed or retained a child in order to create a home state or significant connections will be denied custody. In the event more than one state meets the above standards, the law requires that only one state award custody. This means that once the first state makes a custody award, another state can neither make another "initial" award nor modify the existing order.
Having the same law in all states helps achieve consistency in the treatment of custody decrees. It also helps solve many of the problems created by kidnapping or disagreements over custody between parents living in different states.
The offender may also be charged with kidnapping. And, in many states, if the parent takes the child out-of-state, the crime becomes a felony. Of course, there are exceptions. Those include taking a child out-of-state in order to prevent imminent physical harm to the taker or the child. Or, taking a child out-of-state when requesting custody in court, as long as the police are notified of the child's location.
If your ex continues to be late, consider asking the court to reinforce the drop off times. If your ex threatens not to return the children, and you believe he or she is serious, you can file an "order to show cause" in court. This will get you an emergency hearing to discuss this issue and any possible remedies.
Full faith and credit given to child custody determinations from the Cornell University Law School.
Other law regarding custody from the Cornell University Law School.
For the reasonable visitation approach to succeed, the parents must cooperate and communicate with each other frequently. If you suspect right off the bat that reasonable visitation won't work, insist on a fixed schedule and save yourself time, angst, and possibly money. If you've already agreed to reasonable visitation and it isn't working out, you can go back to court and ask that the arrangement be changed.
Modification of Custody or Visitation
If a parent wants to change an existing court order and the other parent won't agree to the change, he or she must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests.
Substantial change in circumstances include a significant geographic move or a change in lifestyle - custodial parent starts working nights and leaves child alone at home; parent starts drinking/abusing drugs, etc.