How does a court decide who gets custody of children?

If there are any children of the mar­riage, the court will have to award custody to one or both parties as part of that final decree of divorce. Typically the court will also fix monetary amounts for child support awards and spousal sup­port awards if necessary.

Years ago, many courts recognized a presumption in custody issues that favored the mother. She was presumed to be the appropriate parent to whom custody should be awarded. The father would then be awarded visitation rights. He could have the children in his physical control at the times allowed by terms of the court decree. Other than those visitation rights, the father frequently had no other rights. For instance, a father typi­cally would not have the right to talk to the children's teacher to inquire how they were doing, be involved in their sports activities, or even have access to their medical records.

In the last several years, custody arrangements have been liberalized, so today a more common arrangement is an award of joint legal custody. This means that each parent retains full parental rights to be involved in the lives of their children, although one parent will be granted primary, physical custody of the children. The other parent then will have custody (or what otherwise might have been referred to as visitation) during designated times that are established by the court or agreed to by the parties

The general rule of thumb that the court applies in awarding custody is to determine what is truly in the best interest of the child. When custody is contested between the parties, the court will look at a number of different factors in deciding which parent should have primary, physical custody. Those factors may include such things as:

  • the employment status of the parents;
  • capability of providing for day care;
  • the amount of spare time that the parent will have to be involved in the lives of the children;
  • who has possession of the family home;
  • how the children are doing in their school and neighborhood;
  • the financial status of the parties;
  • any mental or emotional difficulties manifested by either party; and
  • to some extent the wishes of the child (depending upon the age of the child). The older the child is, the more likely it is that the court will entertain evidence regarding the wishes of the child.

Grandparents may also have visitation rights. The right of grandparent visitation normally will not be to the detriment of either parent, but instead will typically be allowed during the period of time when the related parent has actual physical control of the child.

A law known as the Uniform Child Custody Jurisdiction and Enforcement Act has been adopted throughout the United States in order to provide some uniformity among the various state courts in awarding custody of children. That uniform act creates disincentives to parents to abduct or secretly remove from one jurisdiction to another for the purpose of obtaining a more favorable forum in which to litigate their dispute. In addi­tion, it assures that the custody determinations made by one state court will be recognized in other state courts.

A concept that is often overlooked in custody determinations is domestic violence, A good bit has been written about this issue and most states now recognize the existence of domestic violence as an important factor in the determination of which parent should have custody, The parent who perpetrates the domestic violence, in many instances, may not be the appropriate person to have custody. Due to the destructive impact he or she has had on the family unit, the propensity for children who witness spou­sal abuse to perpetuate that behavior is increased.

Change of Custody
It is not unusual after a final decree of divorce has been entered that the noncustodial parent files a motion with the court request­ing a change of custody to award him or her primary, physical custody of the child. Such a motion is generally based upon there having been some material change in circumstance affecting the interests of the child.

Once custody has been awarded to one party, it generally takes some fairly egregious conduct on the part of the custodial parent or some significant change in circumstance to justify a change in custody. The prevailing wisdom is that even though the current arrangement may not be perfect, children tend to crave stability in their lives. Therefore, the court must hear some compelling evidence before it will change that otherwise stable arrangement.

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