Every state uses a “best interest of the child” convention in challenged custody cases. This is a somewhat vague convention, and one that imparts itself to judges’ subjective convictions concerning what’s best for children. There are some elements, though, that you can expect the judge to take into consideration.
The children’s age.
Even though the “tender years” belief has long been officially out of date, some judges still deem that children of a young age should live with their mothers, particularly when the mother has been the primary care giver. (Clearly, a nursing baby is going to do so.)
Each parent’s living situation.
There’s a little cause-and-effect dilemma surrounding the matter of where parents reside and how that affects custody. Occasionally, the parent that stays in the family home is awarded custody of the children due to it allowing the children to have balance and continuity in their day to day lives. Occasionally, the parent that has custody is granted the family home, for the same reasons. If you are staying in your friend’s guest house while getting back on your feet following your divorce, don’t expect to get principal custody of your children.
If you genuinely want to spend a considerable amount of time with your children, guarantee your living situation is a reflection of that. How close is your home compared to your spouse’s might also be a factor in the judge’s decision. The more clos you are, the more probably the judge is going to order a time-sharing schedule that enables both parents to have a significant time with the children. The proximity of their school and their social and/or sports activities might also matter.
Each parent’s desire in supporting the other’s relationship with their children.
The judge is going to examine your record of working together—or not— with your spouse about your parenting plan. The judge may also want to know things such as if you badmouth your spouse in the presence of the children or interfering with visitation in any way. The more obliging parent will have a great advantage in a custody battle—and a parent that is obviously attempting to estrange a child from their other parent is going to find out the hard way that courts don’t look happily on that sort of interference.
Each of the parent’s relationship with their children prior to the divorce.
It sometimes occurs that parents that have not been involved much with their children’s lives unexpectedly develop an eagerness to spend more time with the children after the divorce is finalized. In a lot of cases, this eagerness is genuine, and a judge is going to respect it, particularly if the parent has been devoted to parenting throughout the separation phase. But the judge is going to definitely take some time to assess a parent’s change of attitude and guarantee that the custody request is not being asked only to win over the other parent.
As long as children are old enough, 12 + or so—a judge might talk with them to learn their preference in regard to custody and visitation. Many states require courts to take into consideration children’s outlook, but others states oppose of including the children into the circumstances at all. The judge may also find out about the children’s choices from a custody assessor.
Continuity and stability.
Regarding children, judges are big on the status quo, since most of them believe that adding more change on top of the already traumatic transition of divorce usually isn’t good for children. So when you’re making the argument that things are going fine, you’ve got an advantage on a spouse that is arguing for a significant change in the custody and/or visitation plan that’s presently in place.
If you are in a same sex marriage in the state of Connecticut, the District of Columbia, Iowa, Massachusetts, New Hampshire, New York, or Vermont, or in a domestic-partnership or civil-union in in the state of California, Hawaii, Illinois, Nevada, New Jersey, Oregon, Rhode Island, or Washington State, and you are both legal parents of your children, your sexual orientation is going to have no impact on the court’s deliberation of custody and visitation issues. The same principles that are applied to all divorcing spouses are going apply to you.
Specific other states have laws that prohibit judges from using sexual orientation by itself to reject custody or restrict visitation. That does not mean you won’t come across a homophobic judge, even in those states. And in many states, courts are permitted to, and do, take into consideration sexual orientation as a significant element in custody and visitation decisions. It’s quite normal in those states for judges to decree that a parent’s same-sex partner cannot be around when children are visiting, or that the parent can’t exhibit a “gay lifestyle” to the children. And in a worse comes to worse scenario, parents can be denied all contact with their children based on their sexual orientation. The same could be true for parents that are transgender, that may face even more discrimination than same-sex parents, in addition to a lack of comprehension in many courts concerning the transgender experience.
Abuse or neglect.
Certainly, when there’s undoubtedly evidence that either of the parents has abused or neglected their children, a judge is going to restrict that parent’s contact with their children.
Every situation varies, so the judge might take into account other factors in determining custody in your case.
Emily Doskow, A. (2021, February 23). The best interests of the child: Factors a judge may consider in deciding custody. www.divorcenet.com. Retrieved March 8, 2022, from https://www.divorcenet.com/resources/divorce/divorce-and-children/the-best-interests-child-factors-a-
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