How Does the Court Decide Who Gets the Children?

Following a divorce or a break-up, issues regarding child custody can get contentious for parents. So how do judges and courts determine custody and visitation rights? Here is a look at the standard that applies and some of the factors courts consider when deciding which parent gets custody of children.

Custody and the “Best Interests of the Child”

In many states, courts will distinguish between “legal custody” and “physical custody” when making child custody decisions, and these can be seen as two distinct categories of child custody. Legal custody refers to the ability to make day-to-day decisions in a child’s life. The preference in most cases is for both parents to share joint legal custody, so that each parent has an equal say in their child’s health, safety, and general welfare.

Physical custody simply refers to the allocation of time spent with each parent. Over the years, many states have done away with the term “sole custody” and simply order that the parents have joint physical custody or shared parental responsibility then determine the percentage of time that the child will spend with each parent. This is usually done through the use of some type of parenting plan that is either agreed upon by the parents and submitted to the court, or, if the parties can’t agree on this, then the court will listen to arguments from both parents and then make a decision.

In making any decision regarding how much time a child will spend with either parent, or which parent will have primary custody, the court will always make that determination based upon the “best interests of the child” standard. Courts will consider the living situation of both parents and make custody and visitation decisions with the goal of fostering the child’s overall happiness, physical security, emotional well-being, and overall development.

Legal Factors That Determine the Child’s Best Interests

So, what, exactly will courts look at to determine what is in a child’s best interests? That could depend on where you live. While judges in all states apply the best interests of the child standard, the factors that actually make up the standard may vary from state to state.

There is typically no one factor that guides a judge’s custody decision; rather, the judge makes a child custody decision based on a combination of several different factors that contribute to the “best interests of the child.” Common factors that a judge considers in making custody and visitation decisions include:

  • The child’s preference, if state law allows and the child is above a certain age, usually about 12 to 14 years of age;
  • The child’s age and gender;
  • Any special emotional or medical needs of the child;
  • The relationship between the child, parents, and any other children in the household;
  • The parent’s mental and physical health, including evidence of drug or alcohol use or abuse;
  • The parent’s lifestyle, stability, and ability to financially provide basic necessities for the child;
  • Any pattern of domestic violence in the home, or evidence of excessive discipline, emotional abuse, or child/sex abuse.
  • The child’s current living situation and routine, which might include childcare providers, school, and extracurricular activities; and
  • The emotional, social, and emotional impact on the child if a custody change occurred.

Typically the judge will apply the relevant factors to cases on an individual basis, as every family is unique. For example, if a father’s primary reason for wanting custody is that mother has moved ten times in the last two years, and the child has been repeatedly moved from school to school, thus affecting his academic performance, then the judge would definitely be evaluating factors such as mother’s lifestyle and stability, the impact of a change on the child, and the child’s educational situation.

Applying Child Custody Factors

Although many people think that once a child reaches a certain age, he or she can decide where to live, that’s not entirely the case. A child’s custody preference is simply one factor to consider, and while some states may place more emphasis on than that factor others, a judge in highly unlikely to allow the child to make all of the decisions regarding custody and visitation.

Rather, a child’s preferences are simply one of many factors that the judge must take into account in making a custody determination. Furthermore, the weight that the judge gives to the child’s preferences may depend in large part on the child’s age. While a 6-year-old may not be able to articulate a logical reason for his preference, a 15-year-old’s wishes may carry greater weight in a judge’s custody decision, depending on the circumstances and the reasons for the child’s preference.

While a parent’s gender historically was taken into account in some states, there once was a preference for awarding custody of young children to their mothers, no such preference exists today. A judge will assess the fitness of both parents to be the child’s custodian, without regard to the parent’s gender.

Finally, because not all judges are experts in family relations, a judge may call on a guardian ad litem, social worker, custody evaluator, or a mental health professional to investigate and evaluate the family in order to make a custody recommendation to the court. The judge will often rely on these experts who not only have specialized knowledge in the field, but who have also worked more closely with the family members, observed their interactions, and gathered relevant information.

Speak to an Experienced Child Custody Attorney Today

This article is intended to be helpful and informative. But even common legal matters can become complex and stressful. A qualified child custody lawyer can address your particular legal needs, explain the law, and represent you in court. Take the first step now and contact a local child custody attorney to discuss your specific legal situation.

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