By: Undisputed Legal/Family Court Process Service Department
The general test in determining custody in a contest between parents, is the best interest and welfare of the child. Court decisions set forth several factors which are to be considered in determining best interests. These factors are as follows:
(1) The parent who has been the primary caretaker;
(2) The need for stability and continuity in the child’s life;
(3) The relative financial ability of each parent;
(4) The quality of home environment and the parental guidance each
(5) The ability of each parent to provide for the child’s emotional and
(6) The relative fitness of each parent;
(7) The length of time the present custodial arrangement has been
(8) The desires of the child.
Most states declare a specific policy favoring an ongoing, healthy relationship between the child and both parents. If one parent is trying to undermine the child’s relationship with the other parent, that is a negative factor against the parent who is trying to hurt the relationship. If other factors are close to equal, a court may grant custody to the who is more likely to encourage an open and good relationship with the other parent
Similarly, if a custodial parent regularly interferes with visitation, that is a negative factor against the custodial parent and can lead to modification of custody to the noncustodial parent (assuming the noncustodial parent is able to properly care for the child).
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The impact of a parent’s homosexual relationships on custody decisions varies dramatically from state to state. Courts in many states
are more willing to assume harmful impact to a child from a parent’s homosexual relationship than from a heterosexual relationship. On the other hand, some states treat homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor unless specific harm to the child is shown. Continue reading
The wishes of a child can be an important factor in deciding custody. The weight a court gives the child’s wishes will depend on the child’s age, maturity, and quality of reasons. Some judges do not even listen to the preferences of a child under the age of seven and instead assume the child is too young to express an illformed preference.
A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child’s reasons. If a child wants to be with the parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached also may not have his or her preferences followed.
On the other hand, if a child expresses a good reason related to the child’s best interest-such as genuinely feeling closer to one parent than the other the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, two states (Georgia and West Virginia) declare that a child of fourteen has an “absolute right” to choose the parent with whom the child will live, as long as the parent is fit.
There is no one factor that is invariably “the” most important factor in a custody case. The importance of a particular factor will vary with the facts of each case. If one parent in a custody dispute has a major problem with alcoholism or mental illness or has abused the child, that of course could be the deciding factor.
If neither parent has engaged in unusually bad conduct, the most important factor often is which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as the primary caretaker factor. If one parent can show that he or she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old).
Under the current law of almost all states, mothers and fathers have an equal right to custody. Courts are not supposed to assume that a child is automatically better off with the mother or the father. In a contested custody case, both the father and mother have an equal burden of proving to the court that it is in the best interest of the child that the child be in his or her custody.
There are a few states (mostly in the South) that have laws providing that if everything else is equal, the mother may be preferred; but in those states, many fathers have been successful in obtaining custody, even if the mother is a fit parent.
In some states, courts say that mothers and fathers are to be considered equally, but the courts then go on to hold that it is permissible to consider the age or sex of the child when deciding custody. That usually translates to a preference for mothers if the child is young or female. But, again, it is possible for fathers in those states to gain custody, even when the mother is fit.
Child custody is the right and duty to care for a child on a day-to-day basis and to make major decisions about the child.
In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child. That parent usually is called the custodial parent. The other parent generally is referred to as the noncustodial parent. The noncustodial parent almost always has a right of visitation a right to be with the child, including for overnight visits and vacation periods.
In joint custody arrangements, both parents share in making major decisions, and both parents also might spend substantial amounts of time with the child.
The laws relating to custody emphasize the best interest of the children. Both natural and adoptive parents may not ordinarily be denied custody unless there is gross parental unfitness.
There are numerous factors considered by the court in making custody and visitation determinations. Such factors include age, physical, mental and emotional health of the child or parent, and the quality of the home environment, including continuity, stability and security in the child’s home. Other factors that are considered include the primary caretaker status of a parent (which may not necessarily override other factors), whether a parent has made unfounded allegations of abuse, and the recognition (or lack thereof) of the importance that a child have a relationship with the non-custodial parent (alienation). Custody is not awarded after a child has attained the age of eighteen. (Note, however, that the statutory “cut-off” for child support, absent other agreement of the parents, is twenty-one years of age). When custody is contested, the court may appoint an “attorney for the child” (formerly called a “law guardian”) to represent the child(ren). This person is a lawyer who will interview the children (if age appropriate) and represent the child(ren)’s wishes to the court. If the child is of a young age this person is required to make a recommendation to the court concerning the custody arrangement.
The most common forms of custody are sole custody, which gives one parent authority to make all decisions, and joint custody, which often refers to parental sharing of major decisions concerning child rearing. Legal custody refers to the authority of one or both parents to make decisions as to the child’s health, education, welfare and other interests. Physical custody describes the physical residence of the child. For example, one parent may have sole physical custody while the parents have joint legal custody. Regardless of the custody label, parents have great latitude to determine a custody arrangement by entering into a written custody
By: Kye Duncan
Takeaway: While states differ in the way they approach arranging child custody, the best interest of the child is always viewed as the priority.
Child custody is a very emotional and sensitive issue. In most cases, although not all, child custody battles are a result of divorce. The parents are dealing with the breakup of their marriage at the same time as they are fighting for the right to have custody of their child. This can create a bitter situation.