In What Situations Can Full Custody of a Child Be Granted?

Posted by William Bly | May 18, 2015 | 0 Comments

Full custody of child

When it comes to full custody of children in a divorce settlement, what might seem cut and dry to you is not necessarily so to the court. Maine family law courts prioritize protecting the children going through their parent's divorce, and the primary thing the court takes into consideration is what is in the best interests of the child. Your opinion of your soon-to-be ex-spouse does not matter; nor does your soon-to-be ex's opinion of you. Maintaining a sense of normalcy and security for the children will be the court's number one priority, and if it's likely that they will be developmentally and/or emotionally affected by being restricted from spending time with one parent, the court will likely award joint custody, or at the very least, visitation rights to the non-custodial parent.

Custodial Differentiations

There are extenuating circumstances where sole custody of the children is awarded to one parent, but there are very specific conditions that must be met in order to attain full custody. You must also consider the differentiation between “physical” custody and “decision-making” rights. A traditional custody arrangement places the children with one custodial parent, while the non-custodial parent has regular scheduled visitation. This is often referred to as primary residency, which means the child lives with one of the parents at least 51% of the time. Despite the fact that the children are living with primarily with one parent, both parents still share decision-making responsibility over the children's education, medical care, upbringing and overall wellbeing. Obtaining physical custody (in Maine, the courts use the term “residency” to describe “physical custody”) does not give you sole parental rights and responsibilities. Maine courts will normally order shared parental rights and responsibilities in all but the most extraordinary of circumstances.

Situations Warranting an Award of Sole Parental Rights and Responsibilities for the Child

In order to strip your ex-spouse of his or her right to decision-making responsibility and/or visitation, you must prove that he or she is an incapable or unfit parent. Some of the scenarios that Maine courts will take into consideration when assessing whether you should be granted full custody of your children include:

•       The other parent possesses a propensity of violence toward you, your children or others. Perhaps the reason for your divorce is to escape an abusive situation. In this case, or any other case of violence against others, the courts will likely protect your children by preventing your abusive ex from seeing them or being involved in the decisions surrounding their wellbeing.

•       The other parent has a history of sexual misconduct. Abuse, in this case, most certainly includes sexual abuse. Even if your ex has not been inappropriate with your children, if he or she has a history and/or documented record of inappropriate conduct with minors, the courts will likely grant you sole custody. There is a chance your ex will be awarded supervised visitation, but ultimately, the children would be living with you and you would bear all decision-making responsibilities.

•       The same applies to an ex with alcohol or drug dependencies. Obviously, the courts must consider this on a case-by-case basis, as some people successfully complete rehabilitation and become clean and sober throughout the rest of their years. That said, if your ex abuses alcohol and/or drugs, and this places your children's wellbeing at risk, you may be awarded full custody.

•       Placing your children at risk can go beyond abuse of any form, and this is where your custody battle may become a little more difficult to prove depending on the circumstances. For example, if your ex has a history of erratic behavior that might be considered dangerous to your children, such as being unable to maintain a job and/or home, spending excessive amounts of money, or engaging in dangerous activities, the judge might consider excluding the parent from custodial rights.

•       If mental instability, such as paranoid schizophrenia or bipolar disorder, is the reason behind your ex-spouse's erratic behavior, your petition for full custody might go either way. Mental instability is a reason why a parent may be excluded from his or her parental and custodial rights, but the disorder must be incapacitating or prevent the person from being a suitable parent in any way. With medical the treatment available for mental illness today, the court may find the parent suitable, provided he or she maintains the prescribed regimen.

Obtaining sole parental rights and responsibilities for your children can be an uphill battle. However, if you have legitimate reasons why you feel your ex is a danger to you or your kids, an award of sole parental rights and responsibilities may be warranted. As such, it's important to ensure you go into the courtroom adequately prepared to present your case that your children's other parent is an unsuitable one. The Law Office of William T. Bly focuses on protecting your children throughout your divorce and ensuring that the final custody arrangement is in their and your best interests.

About the Author

William Bly

William T. Bly, Esq. is a graduate of Rutgers College where he majored in Political Science with a minor in U.S. History. Attorney Bly attended and graduated the University of Maine School of Law. During his time in law school, Attorney Bly focused on criminal defense.

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