Each state uses a “in the child’s best interest” commonality in contested custody cases. This is a rather amorphous commonality, and one that provides itself to judges’ personal beliefs about what is best for children. There are some attributes, however, that you can expect judges to think about.
The Children’s Age
Even though the “tender years” belief has been officially out of fashion for some time, many judges still consider younger children need to live with their mothers, particularly when the mother has been the principal caregiver. (obviously, a nursing baby is going to do.)
Each of the Parent’s Living Arrangement
There’s a bit of a chicken or the egg predicament surrounding the matter of where parents reside and how that impacts custody. Occasionally, the parent that stays in the family home is awarded custody of the children since it allows the children continuity and consistency in their day to day lives. From time to time, the parent with custody is granted the family home, for the same reasoning. When you are staying in your one of your friend’s guest room while you get life back together following your divorce, don’t expect to get principal custody of your children. When you genuinely want to spend a considerable amount of time with your children, be sure your living environment is a reflection of that. How close your home to your spouse’s can also be a factor in the judge’s determination. The more close you are, the more likely the judge is going to order a time-sharing plan that allows both parents to have considerable time with the children. Where their school and their social and sports activities are located can also be a factor.
Each of the Parent’s Enthusiasm to Encourage the Other’s Relationship with the Children
The judge is going to examine your history of working together—or not— with your spouse about your parenting plan. The judge may also want to know things such as whether you talk bad about your spouse in front of your children or interrupt with visitation in any way. The more accommodating parent will have an advantage in a custody dispute—and a parent that is clearly trying to estrange a child from the other parent is going to learn first-hand that courts don’t favorably on that type of hindrance.
Each of the Parent’s Relationship with the Children Prior to the Divorce
The Children’s Preference
When children are old enough—typically, twelve plus—a judge might speak with them to determine their preferences concerning custody and visitation. Many states require the court to assess children’s views, but others are dissatisfied with involving the children at all. The judge also can discover the children’s preference from a custody assessor.
Consistency and Stability
Sexual Orientation
In certain states like New York, D.C., Connecticut, Iowa, Massachusetts, New Hampshire, or Vermont, or if you have a common law marriage or civil union in California, Nevada, Hawaii, Oregon, Illinois, New Jersey, Washington, or Rhode Island, and both of you are legal parents, your sexual orientation won’t impact custody decisions. However, some states may have laws prohibiting judges from using sexual orientation to deny custody. Nevertheless, facing a prejudiced judge is possible. In many states, sexual orientation can influence custody decisions, leading to restrictions on a same-sex partner’s presence or exposure to a “gay lifestyle.” Unfortunately, transgender parents might face more discrimination, often due to limited understanding in courts about transgender experiences.
Abuse or Desertion
If there’s clear evidence of abuse or desertion by a parent, a judge will limit their interaction with the children. Each case is unique, so the judge considers various factors in deciding custody.
Source:
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Emily Doskow, A. (2021, February 23). The best interests of the child: Factors a judge may consider in deciding custody. Retrieved March 04, 2021, from https://www.divorcenet.com/resources/divorce/divorce-and-children/the-best-interests-child-factors-a-
