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How Is Child Custody Determined?

Updated on November 29, 2019
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Sam Mazella is the Marketing Director of The Peterson Law Firm, the go-to practice in Arizona when facing child custody and support crisis.

Most divorces often involve children. And while divorces usually happen because of personal differences between the parents, the most important – and sometimes difficult – decisions are those that concern the children.

Despite how divorces are portrayed on TV, movies, and social media, they are not always messy, and child custody doesn't have to be a legal battle. In set-ups where the parents are in amicable terms with each other, child custody can be a mutual decision and settled out of court – with or without a mediator.

But while we can all agree that mutual agreement, mediation, and other forms of settlement outside the courtroom are the best routes to take, it’s not the case for many families going through a divorce. If one or both parents fail to set their differences aside, the court will have to intervene.

In case of a custody battle, both parties will need a child custody attorney to handle the situation and represent them in court as the legal system determines the best custodial parent for the children.

Essential Factors in Child Custody Decisions

The court takes into account several factors when deciding which parent gets custody of the child. If the children involved are old enough to decide for themselves, the court usually factors in their choices. However, if they are deemed too young to truly know what's best for them, the court will have to base on evidence, testimonies, and other crucial factors to arrive to determine what's best for the children.

These factors are further explained below.

Age of The Children

For many judges, the "tender years" doctrine still holds some influence when making child custody decisions. It is deemed best for young children to live with their mothers, especially if she is their primary caretaker. When the children are of age, they are then given the liberty to choose for themselves.

Parent’s Living Condition

Pursuing the best interest of the children means providing them with a stable and safe home environment. Thus, the individual living condition of the parent is a huge factor when determining child custody. Whoever can provide the best living standards for the growth and development of the children has a massive advantage in the custody battle.

Preference of The Child/Children

Children over 12 years old may be given a say on the custody decision, specifically on which parent they want to live with. In several states around the U.S, judges talk to the children about their custody and visitation preferences.

Other states, however, refuse to involve the children in the case. Instead, they talk with the custody evaluator, should they need information about the opinions and preferences of the children.

Records of Past Abuse or Neglect

Parents who have committed abuse or are found guilty of neglecting the children in the past may be allowed minimal contact or visitation time with the children.

What parents need to understand, though, is that judges do not only look into these factors when resolving a child custody case and determining the custodial parent. The court pursues several other goals, with the child's best interest being the primary deciding factor — the court studies and probes into which parent can provide quality care and overall support to the children. Thus, the parent who has been the primary caretaker of the child usually gets a leg up.

Determining the Primary Custodial Parent

In most child custody cases, both parties end up getting custody rights to the children. The court, however, will name one parent as the primary custodial parent – who lives with the children and takes care of most of their needs.

Before appointing a legal custodian, the court performs a thorough investigation into the past and present conduct of both parents. This allows them an insight on how they will likely behave and handle parental responsibilities, should they get granted primary custody of the kids.

When naming the primary custodial parent, the court takes into account the work schedule of the parents, their lifestyle and financial capacity, and the emotional and developmental needs of the child.

All these factors hold weight in determining the primary custodial parent. Still, it is usually the relationship of the child or children with a parent that has the most significant influence in the decision. And though many assume that the mother gets to become the primary custodial parent, that is not the case these days any more as fathers become more involved in parenting responsibilities.

Suffice it to say; the court takes great measures to ensure that the custody is granted to the parent who can best fulfill his or her role and has the children's best interest at heart.


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