The factors that determine custody during divorce

When you are going through a divorce, inevitably one of the main concerns you will have is how custody of the children will be broken down between you and your ex. Every divorce is different so coming up with an easy answer to that questions is nearly impossible, but one thing is for sure, the judge will make the determination based on what is best for the children.

How is best interest of the child determined?

Each parent will already be working to secure what is best for the children. However, if there is a contested case for custody, it will fall to the judge to decide. A judge will be able to look at the situations of both parents and how the lives of the children will be affected once custody is determined. Here are a few of the factors a judge will routinely use in making a custody decision.

Ages of the children – The situation of kids who are under five years’ old are generally different than those who are teenagers, this can mean different outcomes based on how living arrangements may be considered.

Wishes of the parents – If the wishes of how the parents want to split custody are relatively close, the judge may only need to make one decision. However, if both parties are far off, the judge can use the wishes of each parent as a path to a middle ground.

Parent and child relationship – If one parent has been away from the family or spends much less time with the children than the other parent, this could be a factor.

State of the parent – The health and mental capabilities of each parent will be considered.

Staying in touch – It is important that each parent remains a part of the children’s lives at least in some capacity. Because of this, a judge may want to know if one parent will stand in the way of the other parent trying to stay in touch and maintaining a relationship with the children.

Majority of care – If one parent is providing the bulk of care and spending more time with the children than the other parent, this will likely play a factor.

Living conditions – If one parent is currently unemployed and does not have a sufficient residence for the children to stay at, the court will want to know this prior to making a custody decision.

Providing for the children – The court will want to see how each parent can provide for the physical, emotional and medical needs of the children. The court may even call on character witnesses to help make this determination.

Wishes of the children – One way to determine the best interest of the children is to ask them directly. If the court feels the children are old enough to express this opinion, they may ask what their wishes are.

These are a few of the many factors that will go into making a decision on custody matters during a divorce. Since your case will be different than everyone else’s, you should consult with an attorney who can help guide you through understanding the process of custody.

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Traci Hutton, Attorney At Law - Family Law Attorney

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