How Is Child Custody Decided?

How Is Child Custody Decided?

For couples with children who are facing divorce, the scariest question of all might be, “Who gets the kids?” Before divorcing spouses auto-launch custody battles, it helps to understand how custody is determined by the courts. Almost all courts use a standard that considers the best interest of the children when deciding custody issues. The definition of best interest depends on many factors, including:

  • each child’s age, gender, and mental and physical health, including any special needs.
  • each parent’s mental and physical health.
  • parental lifestyle and each parent’s ability to provide proper guidance to children.
  • the emotional bond between parent and child.
  • each parent’s ability to provide a child with food, shelter, clothing, and medical care
  • the child’s established living pattern (school, home, family relationships).

Some courts will consider a child’s preference, if they have reached a certain chronological age. But even that is not set in stone, it varies by state and the child’s emotional maturity.

If no factors clearly favor one parent over the other, most courts tend to focus on which parent is likely to provide the child with a more stable environment, and which parent will better foster the child’s relationship with the other parent. With younger children, this may mean awarding custody to the parent who has been the child’s primary caregiver. With older children, custody may go to the parent who is best able to foster continuity in education, family life, and peer relationships.

When it comes to determining custody, courts consider children’s best interests to supersede a parent’s wishes. There is a generally accepted premise that both parents are important in a child’s life.

So unless an ex is a convicted felon or there are legitimate safety concerns (like drugs or physical abuse) that is based on established facts or evidence, not just hearsay, few courts will completely bar a parent from any contact with their kids. Simply hating an ex is not grounds for visitation denial. Even failure to pay child support is not considered a legitimate excuse for a custodial parent refusing to let the ex see the kids.

Likewise, spurious claims that an ex is a bad housekeeper, a terrible cook or other desperate accusations that they are an unfit parent or should not see the kids will not hold water in custodial disputes. As Christina McGhee points out in her Parenting Apart blog, “In reality, a messy house doesn’t equal bad parenting anymore than a spotless house equals good parenting.”

If both parents tell the court different things (for example, you claim that your ex is abusive, and the ex says you are unstable, crazy, or you drink too much), the court may seek information from a neutral third party. A guardian ad litem or other certified professional may be assigned to find out the real story.

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Unfortunately, all sorts of accusations are often hurled between sparring exes during ugly custody battles. Some are relatively harmless or even amusing, like the bad cooking claim, but other accusations like child abuse are serious enough to end careers and ruin lives, even if totally unfounded.

Thousands of dollars are wasted in trying to prove or disprove frivolous accusations hurled during custody battles, but the fact is mud-slinging drama will not sway courts and will only hurt the kids. Even worse, then there’s a permanent written record of the accusations or lies that the kids can revisit. If you see your own behavior reflected in this candid mirror, ask yourself if you really want to cast that shadow over your kid’s childhoods and into the future.

What many angry divorcing spouses fail to consider is that by attacking the other parent’s character they are, in essence, attacking their own children as well. Kids know that they have two parents and consider themselves part of both. So when one parent says or invents disparaging things about the other parent, it’s understandable that hurts the kids, too.

Nasty custody battles can drag on for years. And even when the drama dies, for many former spouses, bitterness and resentment lives on, long after the kids themselves are grown and gone. The custody issue may be long settled, but the damage is permanent and so are the emotional scars left behind.

The most successful custody arrangement is likely one that is not court-imposed, but agreed to by co-parents in a spirit of mediation. The team at Wevorce can help divorcing couples come up with a parenting plan that will meet with court approval and also puts the children’s welfare first.

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