Court Considerations When Determining Child Custody

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Regardless of the jurisdiction, most courts base custody decisions on what's in the best interests of the child. Depending on the age of the child, the court may give his desires for which parent he would prefer to live some consideration. In very contentious cases, the court may appoint a guardian ad litem to represent the child's interests; he may also order a home study or a psychological evaluation to aid him in making a final decision.

Factors Which Impact What's in the Child's Best Interests

In determining what's in the child's best interests, courts will consider a number of factors:

  • The age, sex, and mental and physical health of the child
  • The lifestyle of each parent, including whether the child will be exposed to second hand smoke and whether there is a history of alcohol or drug abuse or child abuse
  • The mental and physical health of each parent
  • The ability of each parent to provide the child with guidance
  • The existence of an emotional bond between the child and each parent
  • The ability of each parent to provide for the basic needs of the child, including food, shelter, clothing, and medical care
  • The quality of the child's education in the current living situation
  • The child's established living pattern as it relates to school, extracurricular activities, and religious training
  • Whether changing the child's living situation would negatively impact him

In instances where the court finds that the parents are equal in these areas, the decision may come down to which parent has been the child's primary caregiver throughout his or her life. Some courts may base the decision on which parent can provide a more stable environment for the child and which parent appears more likely to encourage the child to maintain a relationship with the non-custodial parent.

Change of Child Custody

In situations where one parent has filed a Motion for Change of Custody, in most jurisdictions, courts require the moving party to demonstrate that there has been a substantial change in circumstances which impacts the child's best interests. Factors which may demonstrate a substantial change in circumstances include:

  • Alcohol or drug addiction of the custodial parent
  • Co-habitation of the custodial parent with a person of the opposite sex
  • Homelessness of the custodial parent
  • Physical or mental illness of the custodial parent which impacts his or her ability to care for the minor child
  • Habitual truancy on the part of the minor child
  • Sexual or physical abuse of the child by the custodial parent or by the spouse or significant other of the custodial parent
  • General neglect of the health and welfare of the child by the custodial parent

Grandparent's Rights to Visitation and Custody

In recent years, all fifty states have enacted laws protecting grandparent's rights. These laws govern a grandparent's right to visitation and may also allow grandparents to seek custody of a minor child.

The most common instances where grandparents may petition for custody are:

  • Death of one or both parents
  • Imprisonment of the custodial parent
  • Major physical or mental illness of the custodial parent
  • Abandonment or neglect of the child by the custodial parent
  • Abuse of the child by the custodial parent
  • Divorce or separation of the parents
  • Where the grandparent has been the child's primary caregiver for an extended period of time

Getting Legal Help with Child Custody

Child custody cases are highly emotional and can be stressful to the parents, grandparents, and children. Attempting to represent yourself in a child custody case is very risky. Before moving forward with a child custody case, you should consult with a family law attorney who will advise you of the laws in your state and assess the strengths and weaknesses of your case.

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