Divorce and child custody
Divorce and child custody
By Masood R. Khan, Esq.
This article is of a general nature only and not intended as legal advice. Be sure to consult an attor`ney for your particular legal issues. One of the most difficult events for any family may be divorce. Such an event may become even more complicated and heart-wrenching when children are involved. Who do the children go to? Where do they stay, and who supports them? These are all issues that must be resolved when a divorce occurs in a family.
Legal Custody and Physical Custody
In California, the courts divide custody into two concurrent categories known as "legal custody" and "physical custody."
"Legal custody" over children is the power to make decisions concerning a child’s education, medical treatment and religious training. Usually courts will award "joint legal custody" in which both parents have an equal say in making such decisions.
"Physical custody," as the term implies, refers to where the child will physically live. The parent with whom the child will live with is deemed to have "primary" physical custody. The other parent will have "secondary physical custody" or visitation rights. This parent will usually have specified periods of time consisting of alternating weekends or in some cases will be allowed "reasonable" visitation rights that leave visitation open-ended. Unless a parent has an extensive criminal record or is convicted of spousal or child abuse, a court will very rarely deny visitation rights to the non-custodial parent.
Unfortunately, custody of the children can become a contentious issue between parents and lengthy court battles are fought by each of the parents trying to get physical custody of the children. The courts are required to always take into consideration the best interests of the child, and not simply the wishes of the parents. Many times a court will order a "custody evaluation" whereby an expert is appointed or hired to conduct an in-depth evaluation of each parent’s household, life-style and environment to see which parent would be better suited to have primary physical custody of the child.
Child Support
"Child support" is the financial support that is required to be made by the non-custodial parent to the parent who has physical custody. Child support is determined using guidelines established by California law. These guidelines take into account each parent’s monthly income and the time the child is cared for by each parent. If a parent fails or refuses to pay the amount of child support required by the guidelines, the custodial parent may file a case with the local county to enforce the child support order. This may result in a garnishment of wages directly from the non-custodial parent’s employer, even if he lives in another state.
An Islamic Perspective
Unfortunately, some parents going through a divorce may use child custody as a way to "punish" the other spouse. Perhaps one of the spouses feels they have been wronged in the marriage and feels that by denying visitation rights to the other parent they are bringing "justice" to the situation. This approach may actually cause more harm to the very children they are fighting for by further traumatizing the children and causing them more strain in an already emotionally difficult situation. Regardless of the problems that existed or continue to exist between two parents, it’s crucial that they remember the best interest of the child. Islam entitles each parent to have rights and a relationship with their children, no matter how much the other spouse dislikes their former spouse or how "bad" they believe the other to be. It’s important that parents going through divorce maintain their dignity and respect for one another for the emotional and religious health of their own children.
