In a divorce, if the parties cannot decide on the custody of the children, the court will decide the issue for them. If there is no court order regarding custody, then both parents have equal rights to custody of the child.
If the child is age 18 or over, custody is no longer an issue. However, both parents are responsible for providing monetary support to the child until the child reaches the age of 21. Although child support obligation may end before the child is 21 years old if the child is adjudged to be emancipated by the court.
When discussing child custody, it is important to distinguish between legal custody and physical custody. The party who has legal custody has the right to make important decisions regarding a child’s care. Most often, these decisions have to do with the child’s education, medical care and religious upbringing.
Physical custody is about where the child resides. The party granted physical custody is the party with whom the child will reside more than 50% of the time.
Sometimes parents are granted joint legal custody. When that is the case, both parents have equal right to decide how to raise the child; and both parents may veto the decision of the other.
Joint physical custody is also possible. Under this arrangement, the child spends an equal amount of time living with each parent.
When physical custody is granted to only one parent, then the other parent will have rights of visitation with the child.
Usually, only parents have rights to custody of a child. For a non-parent to gain custody of a child, there must be extraordinary circumstances involved such as the abandonment of the child or persistent neglect of the child.
When deciding custody, the court will consider the “best interest of the child.” That is to say, who will be the best person to care for the child.
In deciding what is the best interest of the child, the court will usually consider the factors listed below. The court is not required to consider all these factors, and it may consider factors other than these.
If the child is already staying with one parent most of the time, then a court may consider not changing custody as it would provide more stability for the child. Also, if there is a pre-existing agreement between the parents regarding custody, it would be viewed as evidence that the parties have already thought about and decided who is the better custodial parent.
When the parties were still living together, the parent who spent a lot more time taking care of the child will be given custody preference.
The parent who can provide a safe home environment will be given preference. A court will consider as negative factors if there are dangerous items like guns left easily accessible and unattended in the home, or if there are frequent visitors who are violent or abusing drugs.
Availability of the parents
The parent who has more time to spend with the child will be given preference over the parent who has to rely on other people to look after the child.
Child care arrangements
If both parents are working, the court may consider which parent can provide better child care arrangement.
Finances of the parents
If one parent is unable financially to provide suitable housing for the child, it will be a factor against awarding custody him/her custody. The court will also consider the effect of child support on the parents’ finances.
Mental and physical health of the parents
If one parent suffer from mental health issues such as depression or bipolarism, he/she is less likely to get custody. Also, the physical health of the parents is also a factor in determining custody, as a parent’s physical ailments or disability may negatively affect his/her ability to care for the child.
Drugs and alcohol abuse
The parent who abuse drugs and alcohol will be viewed as providing a negative influence on well-being of the child.
Physical abuse against spouse
The court is required by law to consider the effect of domestic violence on the child. The abuser is less likely to get custody. In this regard, the court is also aware that parties to a custody fight may sometimes make unwarranted accusation of domestic abuse. The court will careful consider the credibility of such accusations.
Neglect or abuse of the child
A parent who has neglected and/or abused the child is far less likely to get custody. But the court will carefully consider the credibility of such evidence.
Interference with visitation
Courts understand that fostering a healthy relationship between the child and the non-custodial parent is an important factor in the child’s development. A court is less likely to give custody to a parent who purposefully makes it difficult for the other parent to exercise his/her visitation rights.
The preference of the child
The court will consider the preference of the child when determining custody. The court will also look into why the child prefers to live with one parent rather than the other. For example, if a child prefers one parent because that parent lets the child do whatever he/she wants without setting proper boundary, that may weigh against giving custody to that parent. Also, the wishes of the child will generally be given more weight the older that child is.
Education of the child
If one parent can provide a better educational environment than the other, it will be play a role in custody determination. For example, one parent may live in a neighborhood with must higher rated schools than the residential area of the other parent.
If the parents belong to different religions, and the child was raised in one of them, the parent who can continue to provide the same religious environment for the child may be considered a factor in deciding custody.
The child living with siblings
The court will generally prefer to let the child live with his/her siblings.
The parents’ behavior in court
The parent who exhibits positive character traits through his behavior in court will be looked upon favorably by the court in deciding custody.
Disclaimer: this article should not be construed as legal advice. Each legal case should be analyzed based on its own facts and circumstances.<- Previous Next ->