If there is a number one question that I get asked by clients it would be: “how does a judge make a decision on who gets child custody?” My answer is different depending on the facts of each individual case, but, to keep it simple, the judge makes a decision based on the “best interest of the child.”
No, judges don’t simply decide that woman are better parents than men. No judges don’t just listen to what the children want. Instead, there are certain, clearly-enumerated factors that a judge in every state in the United States uses to make a decision about about a child or children.
Be careful: not every state’s “best interest factors” are the same. No, many of the states have slight variations on a similar theme. But, you can be assured that the legislature in your state has come up with factors that a judge must use to make a decision on child custody. Talk to an divorce attorney in your area and they will explain these factors to you.
Here is one states list of factors (again, be careful about simply learning these factors – they vary state-to-state):
The best interests of the child.
(a) “The best interests of the child” means all relevant factors to be considered and evaluated by the court including:
(1) the wishes of the child’s parent or parents as to custody;
(2) the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference;
(3) the child’s primary caretaker;
(4) the intimacy of the relationship between each parent and the child;
(5) the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child’s best interests;
(6) the child’s adjustment to home, school, and community;
(7) the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
(8) the permanence, as a family unit, of the existing or proposed custodial home;
(9) the mental and physical health of all individuals involved;
(10) the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child’s culture and religion or creed, if any;
(11) the child’s cultural background;
(12) the effect on the child of the actions of an abuser, if related to domestic abuse, as defined in section by state law
(13) except in cases in which a finding of domestic abuse as defined by state law has been made, the disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
A lot of factors right? You should also know that judges in states are often precluded from deciding on custody based on ANY ONE OF THESE FACTORS. Instead they are required to use a “totality of circumstances approach.” If you are confused about any of these factors, you absolutely should talk with an experienced Dakota County divorce attorney in your area about what factors a judge uses to decide on custody in your state.
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