How the Court Awards Child Custody
 Child
custody is the most emotional and traumatic part of
most divorce cases. The court awards legal custody,
determined by what the court decides to be in the child's
best interests.
Legal custody refers to the major decision-making for
the child - health, education, religion, and meeting
special needs. It does not refer to the amount of time
that the child spends with the respective parent.
Physical custody refers to the amount of time the child
spends with each parent. The parent with whom the child
is living on a given day generally makes the day-to-day
decisions for the child. Some courts will skip identifying
the primary physical custodian and describe the parenting
time (schedule) that the child has with each parent.
The major variables in determining child custody
are:
- Love, affection, and other emotional ties between
each parent and the child.
- The capacity and disposition of each parent to give
the child love, affection, and guidance, and to continue
the education and raising of the child in its religion
or creed, if any.
- The capacity and disposition of each parent to provide
the child with food, clothing, medical care or other
remedial care recognized and permitted under the laws
of this state in place of the medical care, and other
material needs.
- The length of time the child has lived in a stable,
satisfactory environment, and the desirability of
maintaining continuity.
- The permanence, as a family unit, of the existing
or proposed custodial home or homes.
- The moral fitness of each parent.
- The mental and physical health of each parent.
- The child's home, school, and community record.
- The reasonable preference of the child, if the court
rules that the child is old enough to express a preference.
- The willingness and ability of each parent to encourage
a close relationship between the child and the other
parent.
- Whether domestic violence has occurred in or outside
the child's presence.
- Any other factor the court considers relevant.
There are two major variations of legal custody:
- Sole custody or joint custody.
Principal provisions of joint custody:
- Joint custody means that the parents share primary
decision-making.
- Joint custody does not eliminate the responsibility
for child support, nor is it grounds for modifying
a support order. Each parent is responsible for child
support based on the needs of the child and the resources
of the parent. If, without support, a parent would
be unable to afford adequate housing for the child
and the other parent has sufficient resources, the
court may order modified support payments for a portion
of housing expenses, even during a period when the
child is not residing in the home of the parent receiving
support.
- Joint custody does not affect the amount of time
the child spends with each parent.
Sole Custody
Sole custody means that the primary decision-making
is done by one parent.
Custody Disputes
At the request of either parent, the court will consider
joint custody. The court will determine if joint custody
is in the best interest of the child, taking into account
whether the parents will be able to cooperate and generally
agree on important decisions affecting the child's welfare.
If parents agree on joint custody, the court will award
joint custody unless it determines on the record that
clear and convincing evidence affecting the child's
welfare dictates otherwise.
Modifying Child Custody Orders
Child custody orders are modifiable. The court will
consider the time the child has lived in a stable custodial
environment and what is in the child's best interest.
Remember that the child's preference of where to live,
while important, is just one of 12 factors considered. |
