For a parent who has spent every day of their child’s life in the same home with their child, the idea of having to spend time apart can be wrenching. And when it comes to custody cases, it’s not only the fact that you now have to split your time with your child between yourself and your ex that’s upsetting. It’s also the fact that the person who will make the final decision about how much time you’ll be spending with your child is not you and not someone you know and trust – the judge is a stranger to you. How will they be able to make the right decision for your child? It can help you to understand how judges decide child custody cases.
The Best Interests of the Child
Custody cases are a little bit different from other types of court cases. It’s common to think of judges deciding cases based on what is fairest. For example, if there’s a dispute over which one of you can keep the house, the judge may award one of you the house, but the other one would keep more of the other assets to make up for the loss of their share of the house. Or the judge could order you to sell the house and split the proceeds equally.
But children are different. It’s difficult, if not impossible, to split a child’s time into equal halves. And even if you could do that, it might not be best for the child in question to have their life split in that way. In a custody case, the judge’s job isn’t to find the fairest solution for you and your ex to divide the time you have with your child. Their job is to find the custody arrangement that is the best-case scenario for the child, whether or not you or your ex believe the arrangement is fair to you.
After all, your child can’t take care of themselves, and they have little or no say over your living arrangements, lifestyle, and parenting choices. It’s the court’s job to look out for your child and make the decision that is healthiest for them.
The Primary Caretaker
One of the things that the judge will want to know is which parent has been the primary caretaker of the child. Courts tend to place a lot of importance on continuity of care and dislike disrupting the child’s life more than necessary. In many cases, that means that the parent who has been the child’s primary caregiver will probably wind up with physical custody as long as they are a fit parent.
That doesn’t mean that the noncustodial parent has no rights. If your ex is awarded primary physical custody, you may still be given shared legal custody, meaning that you’ll be able to weigh in on important decisions, like those concerning medical treatment or education. And you will likely be awarded visitation as well.
What makes a parent a primary caregiver? Usually, the primary caregiver is the person who does the most direct childcare. The parent who changes the diapers, prepares the food, attends the PTA meetings, makes the doctor’s appointments, and helps with the homework is probably the primary caregiver. In some marriages, both parents handle these tasks equally, of course. Shared physical custody can allow both parents to continue to participate as they have been.
The current living arrangements matter as well. Remember, the judge is trying to avoid unnecessarily disrupting the child’s life. Forcing a child to move out of their home and away from the parent they’re currently living with is a big disruption, and as long as the parent currently living with the child is a fit parent, a judge may not be inclined to change those living arrangements.
If one parent is awarded sole or primary physical custody, the other is generally awarded some type of visitation. What visitation looks like can vary greatly from case to case, with a lot depending on the family’s needs and circumstances.
When both parents live in the same city, the noncustodial parent may have visitation often – weekly or on alternate weekends, for example. When parents live far away from each other, visitation may occur less often, but it may last longer – for instance, a child could visit their noncustodial parent for several weeks or months during summer vacation.
In some cases, a judge may decide that visitation should be limited or supervised. This happens when the judge has reason to believe that the child may not be safe with the noncustodial parent. A parent who abuses drugs or alcohol may have to have supervised visits with their child. A parent who has been abusive in the past may need to have supervised visits, or may even be prevented from visiting until they’ve complied with court-ordered anger management or parenting classes
Noncustodial parents who have visitation are still as important to the child as custodial parents. Being awarded visitation instead of physical custody isn’t a punishment or necessarily a comment on the noncustodial parent’s parenting skills. In a case where both parents are fit and able to care for the child, it may just be a question of which living arrangement best meets the child’s needs. Custodial parents should take care to comply with the judge’s visitation orders and make the child available on the schedule agreed upon in court. Judges do not appreciate parents who withhold visitation to hurt the other parent and violating the judge’s orders in regards to visitation could be grounds for the court to reconsider the entire custody arrangement.
The bonds between the child and each parent matter. It’s best for a child’s wellbeing to have both parents involved in their life. Judges in custody cases know this, and they do their best to create custody and visitation arrangements that allow both parents adequate time to bond with their child. As divorced parents, you no longer have to share a life, but as long as you share a child, it will be your job to not only maintain your own bond with your child but also to help your child maintain their bond with their other parent to the best of your ability. A legal resources group like National Family Solutions can help you prepare to go to court for your custody case.