When parents agree on the custody of the minor child or children following separation, the parties’ agreement should be reduced to writing to protect all parties in the future. Most of the time, this process can be done through the preparation a separation agreement between the parents. However, a separation agreement is not a Court Order and is not immediately enforceable. Upon a breach or violation of the custody terms of the agreement, a court proceeding for custody or to request the court to require specific performance of the agreement would have to first be filed, a court order would have to be entered and then a new breach or violation would have to occur. It is advisable that the terms of the custody agreement be incorporated into a court order which can be by way of a consent order that does not require a court hearing.

When the parents are unable to agree and wish to take the matter to court, the court will first determine whether either or both parents are fit and proper parties to have custody. If the court determines that both parents are fit and proper, the court will then determine what is in the best interests of the child or children in ordering the terms of custody. The Court will consider many factors when awarding custody of a child or children.

When awarding physical and legal custody, some of the aspects that the court uses may include any of the following: age of child, child’s health, mental and physical maturity, relationship with siblings, and the physical living conditions of the child, along with other factors. The courts may also look at each parent and many factors with their method of parenting, along with the willingness of parents to work together for the best interests of the child or children.

McSpadden Law. P.C. also helps parents seeking to modify or enforce child support and visitation issues related to parental relocations and disputes.

In its custody determination a court usually awards primary physical custody to one of the parents (although a joint and equal arrangement is possible but not as likely if the parties cannot agree and the judge has to make the decision), then the court will usually award secondary custody or visitation to the other parent, provided the court has previously determined that the other parent is fit and proper. Visitation is not dependent on the payment of child support by the parent who has secondary custody or visitation privileges. Visitation, once considered only the right of the parent, is now viewed as the right of both the parent and the child. To that end, the court will work to foster a relationship between a child and both parents. But when the court determines that it is in the child’s best interest, the court will restrict, supervise or deny visitation, if circumstances warrant.

Grandparents or other third parties may be granted visitation by the court in the court’s discretion in certain situations and may be awarded custody under certain circumstances, however, it is a very complicated issue for third parties to obtain custody from natural parents.

Know your rights when you are faced with a child custody or visitation issue. Mr. McSpadden helps you understand those rights and your options during this difficult time. Call 704-868-2292 to schedule a consultation regarding your family law matter.