Now for the second post in our six-part introduction to family law. This week’s post discusses child custody. Part One of this series is available here.
Child custody claims which are not resolved by agreement or mediation are decided by a judge. The legal standard for determining custody is “the best interests of the child.” There are no guidelines for a judge to use in deciding a child custody case other than the “best interests” standard. However, the following factors (listed in no particular order) will provide you with an understanding of what judges typically consider during a child custody hearing:
- The role of each parent, thus far, in taking care of the child. Has either parent been the primary caretaker of the child? This involves a historical look at which parent has provided for the physical care of the child (i.e., changing diapers, feeding the baby, reading books to the child, taking the child for a stroll or to the park, teaching the child skills, taking the child to the doctor or dentist, taking the child to school, meeting with teachers and other personnel, etc.).
- The mental and physical condition of each parent. Does either parent have a problem which interferes with his or her ability to parent? Does either parent abuse alcohol or drugs? Does either parent have any psychological problems?
- Each parent’s care-taking capacities and abilities.
- Whether either parent has abused or neglected the child or the other parent.
- The relationship between the child and each parent.
- Which parent is most likely to encourage a relationship between the child and the other parent.
- What does the child have to say about the situation? Children do not get to choose who has custody of them. However, children of a suitable age and discretion have the right to express their feelings to the judge. Judges are well aware that some parents use promises of gifts, etc. to convince a child that they want to live with that parent.
- Each parent’s relationship with other adults, including whether either parent has an intimate relationship with another adult.
- The time each parent has for the child and the environment which each parent can create for the child.
Generally, custody means that the child will reside primarily with one parent and that parent will make the major decisions which affect the child (i.e., what school the child will attend, the religious upbringing of the child, what doctors the child should use, etc.). Visitation refers to the time the child spends with the non-custodial parent. There are no laws or guidelines with regard to visitation schedules. In practice, one of the most frequent schedules is alternating weekends, with some additional time during afternoons and evenings of a weekday, a portion of major holidays, and several weeks during the summer. You may want a specific schedule or you may want a more flexible schedule depending on the circumstances of your case.
If a lawsuit is filed, the parties are required to attend child custody mediation in an effort to reach a resolution without going to trial. Custody mediation involves the parties and a neutral third party appointed by the court as the mediator. Attorneys cannot participate in custody mediation. If the parties reach an agreement in custody mediation, the mediator reduces the terms to writing. This is called a parenting agreement. Prior to signing the parenting agreement, the parties and their attorneys will have an opportunity to review the agreement. If the agreement is signed, it is adopted by the court and is enforceable by the court if there are any problems.
While mediation can be very effective in reaching a resolution, some cases are not resolved in mediation. If your case is not resolved in mediation, you will have a custody trial. Nothing that occurs or is said in mediation will be admissible in a trial. If your case goes to trial, discussions with your attorney would indicate what evidence needs to be presented and what witnesses may testify.