Understanding How Child Custody Is Determined

This article was contributed by:

Sam Mazella – Marketing Director


Understanding How Child Custody Is Determined

While it’s best for divorced or separated parents to settle child custody issues out-of-court, that is not always the case. There are times when both parties can’t agree on a custody arrangement, and the legal system has to step in.

Taking a child custody battle to court can be very stressful and challenging; both parents need an experienced child custody lawyer to represent them if they want their sides to be clearly heard.

When handling a child custody case, judges pursue a common goal: the best interests of the child. Before appointing a legal custodian, they perform a thorough examination of the parents past and present conducts. This gives them a good insight into how a parent will most likely behave in the future. Note, however, that conduct is not all. There are several other crucial factors that judges consider, which include:

Age of the child or children

Some people may argue that the “tender years” doctrine, when it comes to child custody, is already outdated. However, there are still judges who believe that it is for the best interest of young children to stay with their mothers, especially if she is the one taking care of them.

Individual living condition

Children deserve to feel secure even after their parents separate ways. Thus, the parent’s living situation becomes a huge factor in determining child custody.

The custody is usually granted to the parent who can best provide comfort, stability, and continuity. The judge may also consider factors such as proximity to the children’s school and activity.

Continuity and stability

As mentioned, the court is most likely to favor the parent who can offer stability and continuity to the kids. Most judges believe that divorce can have a traumatic effect on children; to have them adapt to more changes – be it in terms of lifestyle, friends, community, daily routine, etc., would be too much for them to bear.

Children’s preference

Children aged 12 years or older may be given a say on which parent they want to live with. Some states allow the judge to talk to the kids and ask them about their custody and visitation preferences, and may take their opinions into account.

Other states, however, disapprove of involving the kids in the case. In situations like this, the judges may speak with a custody evaluator to know the children’s point of view on the matter.

Relationship with the other parent and children

The court has to make sure that custody is granted to the parent who has the children’s best interest at heart. That said, the parent who has been more cooperative and willing to work things out for the sake of the children has an edge.

The parent’s relationship with the children before the divorce also plays a significant role in the determination of child custody, as this reflects how involved he or she is in their growth and development.

Some parents suddenly become affectionate and want to spend more time with their children after the divorce. While there’s nothing wrong with that, judges feel the need to ascertain that the affection is sincere and not only for the hopes of winning the custody case.

Record of abuse or neglect

If a parent is found guilty of abuse or neglect of the children, the court may limit his or her contact with them.

Child Custody for Unmarried Parents

In the case of unmarried parents, most states award sole physical custody to the mother unless the father takes action. The father usually cannot win custody over the mother, especially if she has been a good parent to the children. Courts, however, typically prioritize fathers over relatives and or foster parents.

Judges are given broad discretion when determining custody and visitation rights. The court awards custody to the parent who is deemed more integral to the physical, psychological, emotional, moral, and spiritual well-being of the children.

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