FACTORS IN DETERMINING CHILD CUSTODY

No one factor is invariable, “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 appalling 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, mainly if the child is young (under approximately eight years old). 

This factor promotes continuity in the child’s life and gives custody of the child to the more experienced parent who has taken care of the child’s day-to-day needs. If both parents have actively cared for the child or the child is older, it is less crucial, although it is still considered. 

One state (West Virginia) has taken use of the primary caretaker factor a step further. In West Virginia, a primary caretaker is automatically entitled to custody as long as they are minimally fit. The presumption does not apply if the child is old enough to express an intelligent preference for a parent other than the primary caretaker. In other states, determining which parent is the primary caretaker is an important factor, but it is not the sole deciding factor. 

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