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How Courts Decide on Custody Issues

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.

Obviously, it is much better for the children when parents can agree to a custody situation and work together for the best interest of each child. Child custody laws vary by state, and each state has different laws pertaining to custody. In most states, there are two types of custody: physical custody and legal custody. These two types pertain to both joint or sole custody. However, some states have adopted new laws that promote parental responsibility rather than child custody.

Parental Responsibility vs. Custody

For example, Florida has abandoned traditional custody laws in favor of parenting plans and time-sharing agreements. Child custody laws in Florida state that it is in the best interest of the child to have frequent and continuing contact with both parents and for both parents to share equally in the rights, responsibilities, and joys of child rearing. In order to accomplish this, Florida child custody laws mandate that parents must work together to draft a parenting plan that outlines how the parental responsibilities will be divided for each child. The time-sharing agreement states when and how each parent will spend time with the child as well as the preferred communication methods for when the parent is not with the child. Only when parents cannot agree, or if there is a danger to the child, will the Florida courts step in to oversee custody issues.

On the other hand, in South Carolina, the courts look at the best interests of the child when awarding physical and legal custody. Physical custody determines where the child will reside while legal custody determines who has the legal authority to make decisions that affect the child, such as health care, education, and childcare. It is presumed that the primary caregiver will have physical custody as well as legal custody; however, that may not always be the case. It may also be joint custody (shared equally) rather than sole custody (one parent having full control while the other parent has only visitation). In a situation where one has both physical and legal custody, the parent who does not have primary custody will often be given visitation rights. Standard visitation typically involves one night per week, alternating with the children being with the other parent every other weekend.

Whether you will be dealing with a situation of legal and physical custody or a situation where both parents are encouraged to be active participants in the child’s life will depend largely on the state in which you reside.

What Elements Do Courts Consider In Deciding Child Custody

Regardless of the approach to child custody that different states use, there are common elements of child custody that are often considered. Some of these elements include but are not limited to:

  • The preferences of each child, depending on the child’s age;
  • The preferences and wishes of each parent, including any agreements the parents may have reached and brought to the court;
  • The past and current relationship of the child with each parent, siblings, other family members, and others that may affect the best interest of the child;
  • The ability of each parent to understand and meet the needs of the child;
  • The actions of each parent with regard to encouraging the child to have a continuing relationship with the other parent;
  • The ability of the child to adjust to his or her home, school, and community;
  • The negative efforts of either parent to discourage the child from having a relationship with the other parent;
  • The developmental needs of the child, including the child’s temperament;
  • The ability of each parent to continue to play an active role in the upbringing of the child;
  • Abuse, neglect, or domestic violence by either parent;
  • Whether one parent plans to relocate a significant distance from the child’s primary residence;
  • The child’s spiritual and cultural background; and,
  • Any other factors or elements that the court deems important when determining what is in the best interest of the child.

The Best Interests of the Child

The overall guiding principle for every family court judge is to determine what is in the best interest of the child. Whether that is awarding sole custody to one parent or dividing custody between two parents as joint custody, the overriding concern for the judge is that the best interest of the child is met. Divorce is difficult on the entire family; however, it is often the children who suffer without having a voice in what happens to them. It is the responsibility of the court to be the voice for the child and to take whatever steps the court feels is necessary to protect the best interest of the child while preserving the parent-child relationship. In some cases, it may be clear that a relationship with one parent may not be in the best interest of the child (i.e. abuse, neglect, etc.); however, in most cases, both parents want to remain active in their child’s life, and it is in the best interest of the child to ensure that he or she has access to both parents. The court must then decide a custody arrangement based on the best interest of the child to ensure the child’s needs are met.

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