Questions and Answers About Custody and Visitation
Who has custody when a child is born to an unmarried mother?
- The mother usually has custody of her child if she is not married when the child is born.
- The mother can make decisions for the child and has the right to take care of the child.
- The father can "acknowledge" paternity.
- This means he says he is the father.
- If the father does this, then he and the mother both have rights to be with the child.
How is paternity of a child established?
- Both parents can sign a Paternity Affidavit; OR
- It can also be established by the court; OR
- As part of a child support order, a court decides who the father of the child is; OR
- The father can "acknowledge" paternity.
What does it mean to "acknowledge paternity"?
- Iowa law does not define all the ways a man can "acknowledge" paternity.
- The word "acknowledge" refers to when a man admits that he is the father of the child.
- The man takes some action showing that he is the father.
- This act could be:
- Signing a paternity affidavit
- Signing the child's birth certificate
- Providing support to the child and mother
- Telling someone that the child is his son or daughter.
- When paternity is acknowledged within a "reasonable" time after birth of a child:
- Both parents have an equal claim to custody, until a court decides differently.
- The law does not clearly say what time is considered "reasonable."
- Courts have ruled that seven years after birth is not reasonable.
What kinds of custody are there?
- In general, custody refers both to where the child actually lives (physical custody) and which parent makes most of the decisions about the child (legal custody)
- These apply to all parents whether married or not.
- Joint legal custody means both parents have a right to help make decisions about the child.
- These decisions include education, medical care, legal status, activities, religious instruction and other matters.
- Iowa law does favor joint legal custody.
- Sole legal custody means one parent has the right to make decisions about the child.
- A court may think it will be better for the child to have one parent making the decisions.
- The court must say that there is clear and convincing evidence that joint custody is unreasonable
- This means it is not in the best interest of the child.
- Physical custody or physical care means the right and responsibility to:
- Maintain a home for the minor child
- Provide for the routine care of the child
- Joint physical care means an award of physical care to both joint legal custodial parents
- Both parents have rights and responsibilities toward the child such as
- shared parenting time
- maintaining homes for the child
- providing routine care for the child
- Neither parent has rights superior to those of the other parent
What if domestic abuse has been involved in the situation?
- The court cannot automatically award joint custody if there has been a history of domestic abuse.
- The law assumes joint custody is not best in these cases.
- "History of domestic abuse" can mean any of the following:
- Asking the court for a protective order
- Receiving a protective order
- The police have been called about domestic abuse
- An arrest or conviction for domestic assault
- The court can award joint custody if there are special facts in cases where there is a history of domestic abuse.
- If there are no special facts for joint custody, sole custody will be awarded.
What does a court consider in awarding sole custody?
- A court will consider these things (among others) to decide on sole custody:
- A parent's immoral behavior that is bad for the child
- Having a "boyfriend" or "girlfriend" may be immoral behavior, but it may not be bad for the children
- A parent's mental illness if this will interfere with the child's health, safety or welfare
- A parent's substance abuse (alcohol or drugs)
- A parent who is violent or abusive
- Joint custody will not work well for the parents
- A history of domestic abuse in the relationship of the parents.
If there is joint legal custody, how does the court decide where the child will live?
- The court can give one parent "primary physical care." This means the child lives with one parent more than the other parent.
- The court can instead give both parents "shared care," which is also called "joint physical care." This means that both parents can have roughly equal time with their child.
How does the court decide whether there will be physical care to one parent or joint physical care?
- Either parent can ask for joint physical care.
- The court can deny the request.
- If the court denies the request, the court has to say why joint physical care is not in the best interest of the child.
- If the court decides to give joint physical care, it can affect child support, public benefits and the tax filing status such as Head of Household versus Single filing status, or eligibility for important tax credits such as the Earned Income Tax Credit.
If the court decides that one parent will get primary physical care, how does the court decide which parent it will be?
- The court looks at many factors in deciding who will have primary physical care.
- It is hard to say which factors are most important to the court.
- The factors the court looks at are:
- Facts about the child such as the age, maturity, mental and physical health.
- Needs of the child such as emotional, social, moral, material and educational needs.
- Facts about each parent including age, stability, mental and physical health, and character.
- The interest and ability of each parent to provide for all of the needs of the child.
- The relationship between each parent and the child.
- The relationship between the child and any brothers or sisters of the family.
- The effect on the child if the court continues or changes the custody arrangement.
- The home environment that the child will be living in.
- The court may look at whether one party moves frequently from one home to another, while the other party has lived at the same place for a longer time.
- Where the child wants to live.
- The importance the court gives this fact depends on how old and mature the child is.
- Recommendation of an independent person who investigated both parties about who should get primary physical care,
- Recommendation of an attorney representing the child..
- Any other options available for physical care.
- If awarding custody to one parent would separate siblings.
- Any other important information that was given to the court.
- The parent the child lives with is often called the custodial parent.
- The other parent is often called the noncustodial parent.
What if someone calls the police during a custody or visitation dispute?
- The police or sheriff does not respond to a custody dispute the same way the court does.
- Law enforcement usually does not like to get involved in civil (as opposed to criminal) matters.
- Law enforcement does not decide who should have custody of a child or when visitation should end.
- Law enforcement may enforce orders that already exist,
- Law enforcement cannot make new orders.
- Law enforcement will not usually get involved in custody or visitation disputes between parents unless;
- There is a court order to enforce
- The safety of the child is at risk.
- This is true whether parents are married or unmarried.
- Whether paternity has been "acknowledged" or not may not matter to law enforcement.
How is a custody decision made by the court?
- First the court looks at whether or not the court has "jurisdiction."
- Jurisdiction means the court has the authority to hear the case and to decide who should have custody of the children.
- Jurisdiction is only an issue if the child or the child's parents have lived in another state in the past.
- Jurisdiction can be very complicated.
- The court considers many things including:
- If there is a custody order in another state.
- Where the child lived for the last six months
- If there is any emergency reason that Iowa should decide custody now.
What if one parent refuses to allow visitation to the other parent and there is no court order about visitation?
- If there is no court order the custodial parent can make decisions that are best for the child.
- The custodial parent is responsible for the well-being of the child.
- If the custodial parent believes that the child will be in danger of abuse or neglect during visitation, they may have other options.
- Other options could be setting up visits at the custodial parent's home, or the home of a responsible third party.
- Refusing to allow reasonable visitation can cause problems.
- A court can look at one parent's refusal to allow visitation in deciding who should get custody.
- This is the same in married and unmarried custody cases.
- The court usually wants the child to have a relationship with the both parents.
- It does not matter whether or not a judge has ruled on paternity.
- If a parent refuses visitation, the court can consider the reasons the parent denied visitation.
- Denying visitation could be due to fear for the safety of either the parent or child.
- The court can decide to award custody to the other parent if the reason for refusing visitation is not a good reason.
- A parent should not refuse visitation because the other parent has not paid child support.
- There are many ways to try to collect support from a parent who does not pay.
- Refusing visitation isn't a way to collect support.
- For help in collecting support, contact the Child Support Recovery Unit.
- If problems continue, contact Iowa Legal Aid or a private attorney.
What if one parent has concerns about what might happen while the other parent has visitation and there is a court order setting up visitation?
- If there is a court order for visitation, the court order must be obeyed
- The person violating the order could be found to be in contempt of the order.
- If found in contempt, the person could be ordered to pay money or be put in jail.
- Only a judge can change a visitation order.
- The proper way to challenge a court order is to ask the court to change the order.
- Each case is unique.
- The court may decide each case differently in deciding where the child or children should live.
- The court may look at different things in each case.