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If a child custody case is not resolved by an agreement between the parties, then it is decided by a judge. The judge’s decision is one that is based upon the best interests of the minor child. This decision is a factually driven decision, and not one that can be readily predicted looking at case law and statutes. Because it is factual in nature, the outcome of the case will be hard to predict. It is important that you provide your attorney with as much factual information as possible that can be verified by objective evidence. The more you can get away from a case based on “he said/she said” the better. How can this be accomplished? Documentation related to school attendance, performance, witnesses that can testify to your relationship and involvement with your children are just a few examples. It is more important that the evidence be focused on your positive attributes rather than the focus being on attacking the other party. The judge needs to trust that you have your children’s best interests at heart, and it is up to you to provide the judge the reason to believe that this is the case.
As noted above, there is no specific guideline for a judge to determine child custody, but below are some factors that may be taken into consideration:
- The role of each parent in taking care of the children. What have the parent roles been historically and what have they been at or after separation/end of the relationship?
- The mental and physical condition of each parent. The mental and physical conditions would have to interfere with the parent’s ability to take care of the children. So, for example, if a parent has bipolar disorder but is receiving appropriate treatment, this would not necessarily be a negative factor when deciding custody. A parent who has bipolar disorder that is receiving no or inadequate treatment would be a red flag to the judge. Addiction to alcohol or drugs would also be relevant as well as a parents attempts to receive treatment and remedy the problem.
- Physical or mental abuse by one spouse of another or the children.
- Each parent’s ability to take care of the children for long or short periods of time.
- The status of the relationship between the parent and the child.
- Which parent is more likely to encourage a relationship between the children and the other parent?
- What do the children think? Children are not often called to the stand, but under certain circumstances, a child of a suitable age and discretion may have the right to express their feelings to the Judge. Both attorneys must agree to have children testify in chambers, otherwise the child must testify in open court.
- Each parent’s relationships with other adults, including whether either parent has an intimate relationship with another adult. The characteristics and behavior of an adult that a parent has an intimate relationship with may be relevant if there are issues of concern affecting the children, such a criminal record of violent crime as an example.
- The time each parent has for the children and the environment that each parent can create for the children. The environment consideration does not necessarily mean “I have a bigger house than you so I should have more custodial time.” It would include the quality of the environment: cleanliness, family dinners, family activities and whether the child has his or her own “space” such as a bedroom and an appropriate place to play and do homework (also someone who can help the child with their homework is also important.) It is the qualities that make a house a home that is important to the judge.
Child Custody: What is Physical versus Legal Custody?
Typically, when people refer to custody they mean where the children primarily reside and that parent will make the major decisions affecting the children such as school selection, church attendance, medical attention, etc. However, where the child resides and who makes the major decisions can differ, which is why you often hear the term physical custody (where the children reside) and legal custody (who makes the major decisions). For example, one parent may be the primary physical custodian but both parties may have equal legal custody such that both parties must agree on major life decisions affecting the children. When parents are incapable of communicating to make these decisions or have a record of making poor choices, the court may vest legal custody with one parent of give each parent different issues on which they can make the particular decision. The fact that the parties are engaged in litigation with regard to child custody is a red flag to a judge that the two parties are likely not capable of making joint decisions regarding major issues in their children’s lives.
Visitation refers to the time the child spends with the other parent. There are currently no guidelines with regard to visitation schedules. The arrangements can vary from every other weekend and one or two weeknight overnights to one parent having the children one week and the other parent the next week continuing this same schedule except for holidays in some cases. Holidays can be left flexible or very detailed based on each individual case and the needs of the parents and the children.
Below are illustrations of common custody arrangements as it can sometimes be hard to visualize a schedule when discussing it verbally. F stands for father and M stands for mother for purposes of the illustrations below:
Equal Physical Custody (overnights only)
Alternating weeks with transitions on Friday afternoons
Factors to consider: while there are less transitions each parent is away from their child for 7 days.
Each parent has same two week nights and alternate other three nights (often referred to as a 2-2-5 schedule)
Factors to consider: there is a stable weekday schedule, which can be helpful for planning for school and extracurricular activities, but each parent is away from their child for 5 days.
One day, two day and three day, all alternating
Factors to consider: while there are more transitions, each parent only goes 2 or three days without seeing their children. For younger children, this may be a good way to achieve frequent contact with each parent if it is geographically feasible.
Minimal Visitation or Secondary Physical Custody
Every other weekend and one weeknight of visitation
Factors to consider: some arrangements have Wednesday night being dinner with parent or only a few hours with the parent and not an overnight. This arrangement is becoming more of the exception than the rule when there are no significant factors to show that an equal time schedule would not be appropriate.
Child Custody and the Court System
If a lawsuit involving child custody is filed, the parties are required to attend child custody mediation in an effort to reach a resolution without going to trial. This process is discussed in detail in the “General Information” section referring to mediation. If mediation is unsuccessful, you will have a trial on the issue of child custody and the judge in your case will make a decision. Your attorney will discuss the details of trial preparation in terms of evidence and witness preparation at the appropriate time.
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