Some couples are unable to agree on how to handle custody and must go to court to resolve the matter. Others initially agree, but issues arise that they are unable to settle. Many couples decide to settle only after getting an understanding of what a court custody fight is really like. For these reasons, it is useful for all couples to understand what happens when a judge must make a custody decision.
When deciding a custody case, the court’s primary focus is on creating an arrangement that is “in the best interests of the child.” Unfortunately, although this is the usual legal standard, it is a nebulous concept that allows for a great deal of argument. The arrangement should assure the child’s health, safety, and welfare. Some states consider frequent and continuing contact with both parents to be in the best interest of the child, as long as there is no history of abuse. This has led many courts to prefer joint custody or, if not, then a sole custody arrangement with generous visitation. However, there is no conclusive long-term proof of what form of custody works best. Legislative preferences vary from state to state. Even when the state declares a preference in its statutes, the individual nature of each case gives judges great leeway to exercise their own preferences.
In court, the focus on the best interests of the child in determining with whom your child will reside forces the court to direct its attention principally to you and your spouse. The court, therefore, will carefully examine your conduct in the past to predict how you will behave in the future. The trial judge is given wide discretion in his or her determination. Appellate review is very limited in this kind of litigation as the courts of appeal are unwilling to substitute their judgment of the facts, since the trial judge was the one who reviewed all of the evidence presented.
Although your child’s welfare is the focus of the proceeding, your child may or may not participate in the court process. The judge and your lawyers may all agree that appearing in court might be unduly traumatic for your child or that he or she might not understand what was expected. In some cases the judge may talk with your child in chambers. Lawyers may be present, but not parents. This is intended to allow the child to speak more freely. A private, in-chambers (in camera) interview helps the judge better understand the child and the parent-child relationship.
In cases involving older children the judge may inquire directly or indirectly about the child’s preferences regarding custody. Indirect questioning might involve asking about how the child spends time with each parent and what he or she likes to do best with each. The older the child, the more impact preference is likely to have on the judge. Usually a judge will factor in the opinion of a child aged ten or twelve on up.
One aspect of custody cases that may be surprising is that the rules regarding the burden of proof and other rules of evidence may be relaxed. Judges may rely on evidence that would be inadmissible in a criminal trial. They may also become more involved in gathering the details they need to make a decision. Thus, the divorce process might see the judge assuming a more inquisitorial role than in other types of cases.
As stated earlier, judges sometimes rely on custody evaluators to help them get a better understanding of the family than can be obtained during a fairly quick trial. Keep in mind that while judges or custody evaluators are expected to be wise and all-knowing, they may be unable to easily relate to your family and the information provided. The custody decision is very personal. It’s hard for a stranger to really understand how the family works and what custody options would fit best.
Judges generally have wide discretion in the factors they consider when making custody decisions, and how much weight they give to each. The judge may consider the following:
- The parenting plan each parent wants.
- All things that might impinge on the development of the child’s physical, mental, emotional, moral, and spiritual faculties. In considering the child’s developmental needs, the judge would take a child’s age into account.
- Each parent’s history and capacities as a caregiver.
- The home environment that each parent could provide to the child.
- The time available to each parent to be with the child, as the judge may wish to maximize the child’s time with a parent as opposed to a babysitter or daycare center. The judge will want to know current and future work and travel schedules.
- The child’s bonding with each parent and with other siblings, if there are any.
- Parental involvement in school, extracurricular, or religious activities.
- Either parent’s plan to or likelihood of moving away.
- The child’s preference, although this is not required.
- The presence of current or past mental instability in either parent.
- Current or past alcohol or drug abuse.
- Any physical problems that could prevent the parent from adequately taking care of the child.
- Parent’s history of cooperating with the other parent or, on the other hand, undermining the relationship between the child and the other parent by actions such as interfering with visitation or cutting off phone contact.
- Parent’s involvement in adulterous relationship or dating.
- Any history of domestic violence or sexual abuse. Such a history generally results in more stringent rules relating to how the judge decides the case.
Even though parents may each state their desire for sole custody of the children, the judge may decide to split custody in ways that please neither side. Parents in a bitter divorce often want to deny the former spouse access to their children. It is important, though, to recognize that judges are rarely swayed by the adult nastiness. Even in cases of domestic violence, the judge is likely to recognize the abusive parent’s right to maintain a relationship with his or her child. In such cases, the judge may limit the parent’s visits and/or require supervision by a third party, but don’t assume that just because your ex is a jerk the judge will deny visitation.
