Whether you are going through a divorce, or whether you are unmarried and have minor children, the family court’s determination of custody is one of the most significant issues in your case.
One of the first questions potential clients ask our lawyers is, “who will get custody of our children?” Generally, but not always, both parents will be awarded joint legal custody; modern family courts favor the co-parenting model. This means that, just as prior to the divorce or custody proceeding, both parents will have input and responsibility into making all the major decisions affecting their children.
In a sense, the terms lawyers bandy about regarding custody are merely labels. In most cases, joint legal custody vs sole physical custody does not mean that much. The more important aspect of the divorce is the parenting schedule; where do the children sleep at night? That is the real question.
Child custody, as a legal concept, has evolved since the passage in 1970 of the seminal legislation known as “The Child Custody Act”. Long ago, children were seen by the law as the property of their father. Once the notion of children-as-chattel was rejected, the concept of “Mother-knows-best” took over. Moms were often granted “custody” throughout the decades of the 1970s and 1980s.
This gender-based rule-of-thumb has in turn yielded to the current child-based approach of the “best interest” factors; custody is decided by the family court in accord with the best interests of the minor children.
The Child Custody Act sets forth a series of factors, each of which a court must make findings about in cases where the parents cannot resolve the custody issue without a trial or hearing. This is the list of custody factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
( l ) Any other factor considered by the court to be relevant to a particular child custody dispute.
There is no mathematical formula or equasion that courts use to make custody determinations. In fact, it is one of the least predictive, most subjective areas in all of law. These factors do not have equal weight and family courts have broad discretion in making their findings and drawing legal conclusions as to each of the factors in your case.
The bottom line, however, is that a family court is required to assess each of these factors before making a custody ruling, and make a determination, on the record, for each of the above factors. As a parent, you will want to document all the things that can be viewed in your favor relative to these “best interest” factors.
If you are facing a custody challenge in a divorce proceeding or a custody case, contact an experienced family law attorney to learn your options. Our law firm offers a free consultation for this purpose.
Here are a few brief articles addressing various aspects of child custody and recent changes in this area of family law:
- Unfounded CPS Complaints Could Lead to Loss of Custody
- Background Check of Significant Other Could Affect Custody
- Military Parent and Child Custody
- Sophisticated Cohabitation does not lead to Child Custody
- The 100-Mile Rule and Custody
- Lawyers should not interview children in custody disputes
- Weekend Parent
- Step Parent Adoption and Custody
- Medical Marijuana and Custody
- Bi-Coastal Custody Battle
- Custody of Cryopreserved Embrios