How the Courts Determine Child Custody

Stephanie Darrell

How the Courts Determine Child Custody

Family Law
| 5 min
7 Min

A divorce or separation affects a couple’s children in many ways, including with whom they live with and who makes important decisions on their behalf. In ideal circumstances, divorcing couples have joint parental responsibility and do not need the court to decide their parental rights and responsibilities.

However, some divorcing couples cannot agree on their respective parental rights and responsibilities. In these cases, they have a contested child custody case, where a family court judge needs to decide who gets child custody. In all states, courts use the 'best interest of the child' standard to determine who gets child custody.

Despite the use of the standard across all states, different states handle child custody cases differently and apply the ‘best interest of the child’ standard differently. However, many parents across states criticize the standard for its vagueness. 

Mostly, parents have good intentions for their children hence the confusion surrounding how the court as a third party has to decide what's best for the children. However, since most divorcing parents have competing wishes and cannot agree on child custody issues, the court has no option but to step in and make the custody decision. 

Factors That the Courts Considers When Determining Child Custody Cases

In line with the ‘best interest of the child’ standard, judges have to take into consideration several factors when determining child custody cases, including:

  1. The Child’s Age

Since young children are more dependent on a parent as a caregiver, courts usually award child custody of such children to the primary caregiver parent. However, as they grow older, the court is generally open to other custody arrangements. 

Depending on a child’s age, the court may also seek their preference when evaluating custody alternatives. The practice of seeking the children’s view or preferences is mostly applicable to children who are old enough to understand custody issues and make informed choices. While some states advocate for the practice, others discourage it, arguing it might force children to take sides.

  1. Continuity and Stability

Even on a basic level, divorce or separation involves a lot of significant changes for children. For this reason, judges are more likely to prefer the custody option that has fewer disruptions or changes for the children. Essentially, the court prefers the option that does not involve the children moving schools and neighborhoods.

To maintain continuity and stability in children's lives, courts also favor a custody alternative that keeps established emotional bonds, including keeping siblings together and having a close and loving relationship with both parents.

  1. Health and Safety of the Children

The court avoids having a custody arrangement that compromises a child's health and safety. The court is likely to deny custody in the event of confirmed cases of domestic violence, abuse, or neglect by a parent. For instance, the court may limit or deny custody for a parent who has a confirmed history of partner or child abuse, even where such abuses have not resulted in a conviction.

  1. Individual Parenting Skills

When making a custody decision, the court is very keen on a parent's relationship with the children before the divorce or separation. Judges have to carefully evaluate how individual parents take care of the children and how much they are involved in their daily lives.

  1. Co-parenting Ability

Besides parenting skills, the court also has to consider the co-parenting ability of each parent. To be successful co-parents, divorced couples need to cooperate and set aside their differences. The court is more likely to favor the parent who shows the willingness to involve the other party in bringing up the child.  

The court will mostly deny or take away custody from a parent who openly and without cause, tries to alienate the children from the other parent. Essentially, a parent must show that they are willing to have a respectful or cordial relationship with the other parent for the children's sake. 

Concluding thoughts

While most courts consider these and other factors when determining child custody, what constitutes the ‘best interest of the child’ standard is mostly the judge's discretion. Additionally, how the standard and the factors apply to child custody vary from state to state.

7 Min
Oct 29, 2019
Stephanie Darrell