The question often comes up, how will a judge decide who gets custody? The judge’s main concern is to do what is in the best interest of the children. The child’s best interest standard is the overarching concern. But how does a judge decide best interest of a child?
There are many factors a judge will consider. This makes up something of a best interest of the child checklist:
- Stability – This is one of the most important factors. The Court wants to disrupt the child’s life and lifestyle as little as possible. If the child is of school age, a judge will tend to want to keep the child in the same school. The inclination is to keep the child in the same neighborhood and even the same house if possible.
- Primary Caretaker – Who has been the primary caretaker in the past? Has one parent been so established since the filing of the Divorce Complaint? This element is closely related to Stability. If things are going well with the child in the current circumstances, Courts will tend to leave those arrangements in place.
- Mental Health of the Parents – Do either of the parents suffer from any mental health issues? If so, the Court will inquire whether such condition will affect his or her ability to parent. If this element is an issue, an expert is often needed to provide an opinion.
- Drugs and Alcohol – Is there a history of drug or alcohol abuse by either parent? Clearly, such an issue can have a great impact on one’s ability to parent.
- Physical Health of the Parent – The physical health of the parents is sometimes important. It may be that one parent suffers from an illness that would make it difficult to care for a child. If this question is raised, the Court may look to see if any reasonable accommodations can be made to lessen that difficulty
- Abuse, Neglect, Abandonment of the Child – If there is any evidence of these situations, it will greatly affect the Judge’s decision. No judge is going to want to award custody to a parent who was guilty of any such activity.
- Interference with Visitation Rights – During the course of the case, temporary orders for custody and parenting time are usually established. If one parent interferes with the other parent’s ability to see the child, that will not bode well for the interfering parent. The assumption is that having a relationship with both parents is in the child’s best interest. Blocking the other parents’ access to the child harms the child.
- Spousal Abuse – Any history of spousal abuse will work against the abuser getting custody. A history of violence against the spouse will lead the Court to believe it is more likely that the child will be abused. A judge does not want to put the child in danger.
- Child’s Preference – In some cases, a child may be able to express which parent he or she wants to live with. Whether a judge allows this depends on the child’s maturity. There is no official age when a child can so choose. The older the child is, the more weight a judge generally gives to such preference. Courts are often hesitant to have a child choose between parents as it puts a great strain on the child. In any case, even if the child does express his or her preference, it is still only one factor the judge will consider.
- Finances of Each Parent – Is one parent financially unable to care for the child? This may be considered. Of course, that situation could be remedied by having the more financially stable contribute to child support.
- Conditions in the Home Environment – The Court will look to see if the homes of each of the parents is appropriate for the child. The judge will want to know that the homes are safe, stable, and secure.
- Where the Child’s Siblings Live – If possible, the Court wants to keep siblings together. This goes back to the stability element. The child is in some sense losing part of a relationship with either his mother or father. The judge doesn’t want to see siblings broken up as well.
- Court’s Observations of the Parents – The judge will observe how the parents act in Court. Any signs of aggression or instability will weigh against such parent.
- Guardian ad Litem – Sometimes a Guardian ad Litem is appointed by the Court. That person is usually a lawyer or clinician. That person will investigate both parents; visit with them in their homes; contact other people such as children’s teachers and doctors. The Guardian will report to the Court on their findings to assist the judge in deciding who gets custody.
These are some of the factors a judge will use to determine who gets custody of a child. The guiding principle is the best interest of the child standard. Everything else is governed by that. It is a crucial decision in a divorce case. It has a profound impact on everyone involved.