All states use a “best interest of the child” standard in disputed custody cases. In days past, it was also assumed that custody would be awarded to the mother, but this simply isn’t the case anymore. In fact, more and more often, the courts have been awarding joint custody with the children’s time being split equally among parents. The “best interest of the child” is a rather generalized standard, but there are some factors that you can expect a judge to consider.
First, a judge may look at each parent’s willingness to support the other’s relationship with the children. The judge will look at the record of the spouses cooperating—or not— about parenting roles and schedules. The judge might also want to know things like whether you bad-mouth your spouse in front of the kids or interfere with visitation in any way. The more cooperative parent is going to have an edge in a custody dispute. If there is one parent in particular who is clearly trying to alienate a child from the other parent, courts don’t look kindly on that type of interference and certainly take that into consideration.
Second, courts will look at each parent’s living situation. Oftentimes, the parent who stays in the family home is granted custody of the children because it keeps some stability and continuity for the kids in their daily lives. Other times, the parent with custody of the kids is awarded the family home for the same reasons. If you don’t have a stable home for your kids, say, if you’re trying to get back on your feet after the divorce, don’t expect to get primary custody. The parent whose living situation reflects stability-- especially whichever parent’s lifestyle has the minimalist change for the kids, they are the ones who usually get custody. The proximity of your home to your spouse’s may also factor into the judge’s decision. The closer the homes are, the more likely the judge will order a time-sharing plan that gives both parents equal time with the kids.
When it comes to custody battles, judges are big on keeping the status quo. So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.
A judge will also take a look at each parent’s relationship with the children before the divorce. Sometimes parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended. A judge will respect that if it’s a sincere desire-- especially if the parent has been dedicated to parenting during the separation period. Sometimes, however, the custody request is made simply to “win” over the other parent which is why the judge will usually take some time to evaluate in these cases.
Lastly, the judge will take into consideration if there has been a history of abuse or neglect. Obviously, if there is evidence of either of these, whether before the separation or during visitations, a judge will limit that parent’s contact with the kids. It is important if you suspect these types of behavior to talk with your lawyer and possibly hire an investigator to gather evidence.
Below, we’ve posted a couple good articles that highlight the different roles when it comes to knowing your rights in a child custody case.
Click on image for a woman's perspective
Click on image for a man's perspective
For more information on Child Custody Cases, click here to see what the investigation process looks like.