Who Gets Custody Of The Children in a Divorce?

How do courts decide which parent gets physical and legal custody of the children? What if my child has already informed me who he/she wants to live with?

Here, the child’s best interests are important. Whatever the parents or the judge assume is best for the child might be completely different. It is the controlling principle that determines every child custody case that comes before a judge. Well, what does the child’s best interests mean?

Well, it refers to all the aspects of your child’s life such as past abuse or neglect suffered by your child, safety, health, education and their general welfare. The court will also check to see the status quo and ascertain whether or not it should be modified. Note that, the status quo affects mostly divorcing parents who haven’t separated physically and are looking for initial custody determination.

If your child has chosen a specific primary custodian, the court will consider the declaration with a few reservations. First, they will determine the child’s age and level of maturity. If the child is 14 years or older, the court is mandated to listen to the wishes of the child. If the child is younger, the court should be able to determine whether or not it’s in the child’s best interest to listen to their preferences.

According to the California legislature, at the age of 14 years, the child is considered rational and emotionally mature to explain their preferences of living with one child. However, it remains the court’s discretion on whether or not to follow the child’s preference in some cases. For instance, if the child has been coached, alienated or prefers to live in a home without any discipline and can leave at odd hours at night or where education or homework is not a priority.

Courts will also assess the relationship between the parents to identify the best choice of primary custody. If one of the parents has intentionally alienated the child from the other parent, failed to communicate, interfered with the other parent’s time with the child or failed to cooperate, the courts will award custody to the other parent. It doesn’t affect the fact that the alienating parent is the primary caregiver.

In California, the courts are very serious about co-parenting. There are numerous options for parents to co-parent even in high-conflict custody cases. It’s in your best interest to co-operate with the other parent to your best ability before the court identifies you as an uncooperative parent thereby causing you to lose custody.

The court will also consider a few more things when it comes to the best interest of the child. These include the relationship between the child and the parent, the education or schools available to the child, their current living situation and the ability or health of parents to take care of their children. The court doesn’t consider race, gender, sexual orientation, religion, financial status or any handicaps of the parent.

Most people assume that the court favor mothers over fathers in custody cases. In most cases, mothers take the role of the primary caretaker because of the traditional gender roles in the nuclear family. However, in the modern world, gender roles have become blurred. As such, more fathers have become better caretakers, especially after a divorce or separation.

Before any other considerations, the court has a huge responsibility to ensure the best welfare of the child. They will consider the choices and behavior of the parent but the demographic characteristics will not be considered. Therefore, you don’t have to be worried what happens if you are the male parent. As long as you can prove you are good caretaker, you in the running for primary custody.

Are you in the middle of a custody battle or a divorce? Well, you need to be prepared for what happens to your child. Besides what happens in your relationship, you need to make sure that your child has a good relationship with both parents. You need to be careful about the things you can control such as communication, attitude and cooperation with the other parent. It works to your advantage if you are cooperating with your ex-spouse on how to handle your child’s affairs going forward.


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