Child custody, visitation, conservatorship – these are the various terms used across the United States to reference a parent’s legal rights and responsibilities upon divorce or separation. When parents find themselves at this crossroad, they are given the ability to negotiate a parenting agreement or parenting plan together that provides in-depth details on how their child(ren) will be cared for moving forward. In sensitive and often emotionally volatile situations, amicable settlements may be difficult for parents to reach, thus resulting in the courts deciding visitation and custody arrangements based on what they determine to be in the best interests of the child.
What determines a child’s best interest?
In general, the “best interests of the child” refers to the deliberation courts take when deciding what type of services, actions, and orders will best serve the child, and who is best suited to take care of him or her. With over ten years of experience in the Family Law space, Texas-based attorney Keesha Montoya shares that she has never seen the same response across judges due to its circumstantial nature.
“For me, personally, if I’m looking into the best interests of the child, I’m looking to see whether or not the children are safe. I don’t care what it has to look like, who it has to be with, or where it occurs – they just have to feel safe. That is both emotional and psychological, as well as physical,” Montoya says.
Placing the child’s complete safety and well-being as the paramount concern, the Child Welfare Information Gateway lists best interest factors (across approximately 22 states and the District of Columbia) as:
- The emotional ties and relationships between the child and his/her parents, siblings, family, and household members
- The capacity of the parents to provide a safe home and adequate food, clothing, and medical care
- The mental and physical health of the parents
- Ensuring domestic violence is not present in the home
What constitutes a parent’s right and legal responsibilities during a custody case?
Parenting is a balancing act between rights, responsibilities, and privilege. During a custody case, courts typically presume that children benefit from having both parents involved in their upbringing. On the same note, courts will not choose to take children away from their parents without significant reason.
“Family Law is really about the children because we are talking about another generation of damage. The marriage is already gone, but now we are dealing with the kids and how they will be affected moving forward. We are intervening at a really crucial time, so we must understand the purpose in this deal,” Montoya says.
Unless parental unfitness is proven, parental rights include:
- The right to physical custody: Reasonable visitation with a child and regular contact
- The right to legal custody: The ability to make major decisions about the child’s health, education, and religious upbringing
- The right to pass property to a child via gift or inheritance
- The right to a child’s earnings or estate in the event of death
While parents can share their rights as they would when they were together, courts may also place limitations once parents are divorced or separated. For example, a judge may grant legal or physical custody to only one parent on a case-by-case basis.
In general, physical and legal custody is evaluated based on each parent’s ability to maintain legal responsibilities for their children. These legal responsibilities include providing financial and emotional support and meeting their basic needs for food, clothing, housing, medical care, and education.
What factors commonly affect a parent’s right in custody cases?
While courts seek to ensure children have the opportunity to maintain a relationship with both of their parents, courts may limit or even terminate parental rights if the child’s safety is in danger. These serious instances can include cases involving domestic abuse and substance abuse.
“The most common issue I typically see arise in custody cases is substance or alcohol abuse. That is the biggest one I keep running into with one or both parents. There is always something going on; it flares, and then it blows up. This seems to be even bigger than domestic violence,” Montoya shares.
Balancing both the child’s best interest and a parent’s rights, Soberlink alcohol monitoring provides court-admissible proof of sobriety. Comparing it to an inconspicuous system of checks and balances within the home, Montoya now relies on Soberlink instead of her previous alternative: a costly, intrusive, and time-consuming 10-point inspection, or full-therapeutic regimen.
“Soberlink is quick and not cost-prohibitive while providing immediate gratification to Concerned Parties. We don’t have to take the 90 to 120 days of evaluation to decipher that there are severe alcohol problems, while the child is living with the individual the whole time,” Montoya says.
Focusing on the child’s long-term well-being, if alcohol abuse is found to be an issue, Montoya and her clients’ ultimate goal is to find out the underlying problems that may have led to alcohol abuse or substance abuse. “If you can keep both parents in, that is what you want,” she says. “Let’s get family therapy with the kids and do therapeutic alcohol evaluations alongside Soberlink.”
What are the effects of COVID-19 on custody cases?
Amidst the recommended, and in some states, required shelter-in-place orders, one of the most concerning factors to Family Lawyers like Montoya is that some children may not have access to others in their community and are instead sheltered with parents that abuse alcohol or physically abuse them.
“When you lose the ability to get access to witnesses in a courtroom to cross-examine them and get your eyes on people like we used to, it is harder to prove what is in the child’s best interests to determine parental rights,” she shares.
Easing the difficulty in ascertaining evidence at this time, Soberlink provides proof of sobriety using scheduled tests that elicit real-time results. The intuitive system used by thousands of Family Law Professionals nationwide provides an added layer of safety and support, beyond just checking apparent boxes of whether a parent provides for a child’s basic needs. Moreover, Soberlink’s Advanced Reporting® capabilities allow lawyers, judges, and loved ones to ensure a greater safety aspect for children living in homes with addiction. Learn more about Soberlink’s role in Family Law and how the technology can make a difference in your next case: soberlink.com/divorce/family-law/