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When Awarding Custody, What Does a Judge Consider?

By September 25, 2020Custody
When Awarding Custody, What Does a Judge Consider? - National Family Solutions

When parents divorce or separate, the first question on their minds is often, “who will get custody of the children?” In many cases, separated parents can come to an agreement without involving a judge. When the parents cannot decide, however, it becomes necessary for the court to make a decision about awarding custody.

If you are in this situation, it’s natural to be nervous and apprehensive about what the court will look at when awarding custody. You might worry that you risk not being able to parent your child or even that you will not be able to see him or her. Read on to find out what the court will consider when it comes to awarding custody for your child.

Age of the Child

The age of your child might have some impact over the custody arrangements, particularly if your child is very young. Nursing babies and toddlers will often spend more time with their mother out of necessity; while fathers can do almost everything when it comes to childcare, breastfeeding is not one of them.

Note that a custody arrangement that seems to favor the mother of a baby can often be modified later, once the baby or toddler is weaned. For young children who aren’t nursing, the parent who was their primary caretaker will often get more hands-on parenting time than the other parent. Again, this is something that can change when the child gets older.

Many times, the court will not want to disrupt a young child even more than the divorce or separation already is disrupting them, so the judge will often decide that if there is a stay-at-home parent, that parent should have more physical time with the child than the other parent. If neither parent stayed home nor provided the bulk of the care, then this would not generally apply.

Living Situation of Each Parent

The judge will want to place the child where the situation will be most stable. In many cases, the parent who stays in the marital home will be the one with primary custody of the child. This does not have to be the case, however, if the other parent also has a stable living situation. If your ex takes the house and you rent an apartment with adequate room for both you and your child, then that is a stable situation that will keep your child safe and secure, so you may end up with joint or even full custody.

On the other hand, if your ex keeps the house and you crash on your brother’s sofa or you are living in a hotel room, that is probably not amenable to receiving a large portion of physical custody. Once you are in a more stable environment, that could absolutely change, however, and you can ask for a custody modification. Even outside of stability, there are other living arrangements that might factor into the equation. For school-aged children, for example, it is often desired that the child can stay in his or her current school to maintain consistency.

If one of you lives in a different school district, that could make it more likely that the parent keeping the marital home will be awarded primary custody. And if one relocates out of state or to an area of the state that is not within quick driving distance, that could also factor in. In some cases, the judge will allow the relocating parent to take the child, but in other cases, the child will remain with the parent who has opted to remain local.

The Parent-Child Relationships

The judge will want to know what the relationship is between each parent and the child. Since this is not a question that can really be answered objectively by the parents, there are a few ways this could be determined.

One is by asking the child, though some states frown on this, and it is not usually considered appropriate to ask young children (under the age of 12 or so). A more common way to gauge the relationship among various family members is to ask a parental evaluator, such as a guardian ad litem (or GAL), to step in and observe the parents and child interactions.

The GAL will be able to make recommendations to the court about whether one parent or the other is more involved with the child or whether the child is more comfortable around one or the other parent. If there has been abuse, neglect, or other serious transgressions against the child or against one parent by the other parent, that is likely to weigh heavily on the decision.

The Parental Relationship

In an amicable separation or divorce, this is less of an issue, but if one parent is bad-mouthing the other or not supporting the relationship between the child and the other parent, this could be detrimental to that parent’s case. A judge wants both parents to acknowledge that the child should have a relationship with both. A parent who routinely does not return the child on time, speaks poorly of the other parent, or otherwise tries to alienate the other parent is less likely to receive the custody arrangement they were hoping for.

The Child’s Preference

In some states, a child over the age of about 12 might be asked which parent they’d rather live with. If the child has a strong preference, this will often be taken into consideration. In other states, however, judges will not ask at all, and it is generally not something asked of younger children. A judge will often take this with a grain of salt, too. The parent who is less strict may be the child’s preference to live with, but that is not necessarily in the best interest of the child.

Remember that when it comes to awarding custody, the best interest of the child will always be at the forefront of the judge’s mind. The court will want to choose the situation that will be best for the short- and long-term health and well-being of the child. In many cases, this will result in joint custody, but not always.

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