The kids. Whether they’re a few years old, pre-teens or full-blown teenagers, children are always the number one priority in any divorce. The main concern typically centers around which spouse will receive custody, and if split, by what percentage. In amicable divorces, the couple can agree on a custody arrangement, the holiday schedule, religious affiliations, medical decisions, extracurricular activities, and any other significant aspects. However, sorting all of this out isn’t an easy feat, and couples may need legal assistance to do so. It can also be helpful to have a legal document to point to in the future, if necessary.
In other cases, where the marriage has met a contentious end, discussions erupt into combative arguments and children become pawns in a parental battle to emotionally harm one another. In such instances, the courts are required to step in. According to the U.S. Census Bureau, there are approximately 13.6 million custodial parents in the country and approximately half have either legal or informal child support agreements. Women are most likely to be awarded custody, as 51.4 percent of custodial parents were mothers in 2018. However, there has been an increase in fathers—20.1 percent—being awarded custody of the children.
All states evaluate child custody based on the best interests of the child. Child Welfare Information Gateway, a service of the Children's Bureau of the U.S. Department of Health and Human Services, published an article stating: “Although there is no standard definition of ‘best interests of the child,’ the term generally refers to the deliberation that courts undertake when deciding what type of services, actions, and orders will best serve a child as well as who is best suited to take care of a child.” These interest decisions are based on “factors related to the child's circumstances and the parent or caregiver's circumstances and capacity to parent, with the child's ultimate safety and well-being the paramount concern,” it continues.
State statutes reference guiding principles toward the overarching goal. Twenty-eight states cite the importance of family integrity; 21 note the health, safety, and protection of the child; 19 states stress timely permanency; and 12 emphasize the importance of care, treatment and guidance the child will receive if removed from the home.
Twenty-two states and the District of Columbia list specific factors to consider when determining child custody. The four major influences include:
1. Relationship Between Parent & Child
The relationship between a child and their parent or caregiver holds heavy weight with the courts. If one parent is not involved, or has suddenly expressed a desire to be in the child’s life once the divorce proceedings begin, the judge may be skeptical. If this eagerness appears to be sincere and the parent has made the effort to see the child during separation, the judge may take this into account. If either of these occur, it’s best to keep a record of the time that spouse spends with the child. The child’s comfort level with their parent is also vital, as the judge may ask the child’s preference, especially if the child is 12 years or older.
2. Ability of the Parent to Provide
A second factor is the parent’s ability to provide for the child if they have custody, and for the other parent to pay child support. The court will look at both parents’ work obligations, income, financial stability, and living situation. The judge will want to know the children are going to a home where they will enjoy a stable and comfortable life consisting of at least three meals, an education, warm bed, and roof over their head. It’s also important the non-custodial parent can provide enough child support for the custodial parent to care for the child.
3. Mental & Health Needs of Parents & Children
The mental and physical health of both the parents and children are considered. If one parent suffers from anger management or another untreated mental illness that could impact their ability to care for their child, the other spouse is more likely to receive custody. Similarly, if one parent suffers from a debilitating physician condition that leaves the parent unable to complete daily tasks involved with care, they’re less likely to receive full custody. Because the mental and physical health of the child is also of utmost importance, the court will assess the parent who is most capable of attending to the child’s needs.
4. Presence of Violence or Abuse
If the court has knowledge of any violence, physical abuse, or drug or alcohol abuse in the home, they will not award the child to that parent or there will be visitation limitations. Clear evidence of neglect will also lead to dismissal of custody.
Additional factors used to evaluate child custody include the age of the children; each parent’s living situation; the children’s preferences; the impact the decision will have on the child’s education, medical, or emotional needs; federal and/or state constitution protections; and the importance of maintaining sibling bonds. Three states list aspects that should not be considered during this analysis: Connecticut will not base the determination on socioeconomic status of the parent. Delaware cannot assume one parent is more qualified due to their sex. Idaho “will not permit discrimination on the basis of a parent’s disability,” states the “Determining the Best Interest of the Child” resource.
If you have more questions about the child custody evaluation process, find a legal expert in your area today. DivorceForce offers a comprehensive network of attorneys, collaborative professionals, child-custody evaluators, mediators, parenting coordinators, and more to help you through the exhausting child custody process. We’ll help you do what’s best for your child.
Gregory C. Frank is the CEO and Founder of DivorceForce.