who gets custody

Who gets custody and what factors matter in making this determination? We have written pretty extensively about child custody cases, and the best interest of the child standard.  In this blog, we will explain what judges usually consider when using this standard.  Specifically, we want to talk about what judges don’t consider as much as some of our clients think they should.

This blog is intended to provide some basic information. It is not intended as a substitute for the advice and counsel of a family law attorney.

What is best interest of the child?

The best interest of the child standard is exactly how it sounds.  The judge factors in all the information that is presented.  This information will include things about parents, their history, and where they both live and work.  Things that tend to come up include:

  • School district information
  • Support system of the parents
  • Past and current behavior of the parents
  • Living situation of the parents

Best interest of the parent?

That is not taken in to account as much as some of our clients would want.  A child custody case is about the child not about the parent (at all) and sometimes we have a tough time getting that point across.  The child is the focal point of the case, and the parents in this context, operate to serve the needs of the child going forward.

So, who gets custody? The default is best interests of the child.

In general, it is in the best interest of the child to have both parents in their life. This means that courts tend to award at least some custody and/or visitation to each parent.  The court is not going to punish a parent for being a “bad parent” to the detriment of the child.

What we mean by this is, people seem to think that if a parent was absent in a child’s life for some period of time that he should be barred from getting any visitation. It does not work that way.

Things that you might think matter that really don’t matter (or at least don’t matter as much as you think they matter)

There are many things that clients bring up thinking that these factors will help them win favor with the judge who is determining who gets custody. While a judge will look at all factors under the totality of the circumstances, the following issues have limited value in a custody case. We have just come up with a few examples to provide an idea of some of the things that clients tend to overvalue.

  • The other party treats me poorly
  • The other party has used illegal drugs
  • The other party has had a drug or alcohol problem in the past
  • The other party has a new girlfriend or boyfriend
  • The other party has obnoxious family members
  • The other party has a different parenting style

Remember that all of the factors can be brought up – but they will be looked at under the “best interest of the child” microscope.

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