Who gets Custody?

The concerns of a parent going through a divorce or considering one about the child(ren) and who will get custody loom as critical issues for the parents as well as the children. There are feelings that come to the surface leading to one or both parents feeling angry, hurt and worried about the outcome of a custody battle.

Is the Battle Necessary?

When deciding whether to even enter into the battle or finding other workable solutions to the need for a divorce many parents wonder what considerations the courts make or what information they use to make the decisions they make.

The factors that courts consider can be understood before the fact of getting in front of a judge. If level heads can prevail, then the same outcome that the courts look for can be achieved without involving them. That outcome is always to take into consideration what’s in the best interest of the child(ren).

As long as cooperation and collaboration are the operative principles in any and all discussions and negotiations then the outcome will be sustainable for the long term and the impact on the child(ren) will be minimized.

The Factors around "Best Interests"

The “best interests of the child” tests are long standing in the courts because they allow for a prioritization of factors more easily to be applied to all questions of custody and other terms important to the well-being of the child. The factors that are considered and therefore need to be embraced and understood by the parents include:

  • Age, sex, and mental and physical health of the child(ren)
  • Mental and physical health of the parents
  • Lifestyle and other social factors involving the parents, including exposure to second-hand smoke and any history of child abuse
  • Emotional bonds between each parent and child, including their ability to give guidance to the them
  • Ability to provide food, shelter, clothing, and medical care
  • Established living patterns for the child(ren) (school, home, community, religious institution)
  • Education quality in the current environment
  • Changing the status quo & its impact on the child(ren), and
  • Preferences of the child(ren), if they are above a certain age (usually about 12).
  • Making Sense of the Factors for Final Decisions

Weighing these factors against each other and making sure that they aren’t weighted in favor of one parent over the other are the primary considerations of the court. Determining which parent is capable of providing the best level of stability to the child(ren) is the consideration of primary importance give there are now over weighted factors from the above. The courts are also interested in which of the parents is more likely to be able to make sure the other parent is engaged at a level that makes sure relationships with the other parent are optimized for successful interactions. The considerations for younger children are more around continuity of care and for older children which parent is able to best continue the growth of the child in a variety of areas including:

  • Education,
  • Life in the neighborhood,
  • Access to religious institutions, and
  • Relationships with their peers.

While there are potentially a lot of other extenuating circumstances and issues in the parental realm that need taking into consideration, these are the base set of factors that all courts typically consider.

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