Divorce is more than just splitting assets; custody issues will arise. Deciding custody outside of court is possible, but usually disputes will arise over which parent should maintain primary custody. The standard for determining custody is which arrangement is in the best interests of the child.
“Best interests” is a difficult term to define because each situation is different. The court will perform thorough questions and analysis to determine which parent should maintain custody of the child.
A few of the most common factors analyzed are:
- The wishes of the child. This is only a factor for children that are older and have the ability to express their parental preference.
- The mental and physical state of the parents.
- The sex and age of the child.
- Which parent will be able to provide the best home environment for the child.
- Determination if one parent is unfit for custody.
Factors are not exclusive, and the courts may also consider the location in which a parent lives. Courts have been known to give custody to a parent that lives in a favorable school system, or an area where crime is lower.
In the event that the child has a learning or physical disability, a factor may include the educational needs of the child. One school district may be better equipped to cater to the child’s needs, or one parent may be closer to the ideal school for learning and physical disabilities in the area.
Employment status of the parent will be a major consideration. While courts often give custody to a parent with a lower level of income, the parent will still need a job that is able to provide for the basic needs of the child. Child support payments will also be adjusted accordingly so that the child is able to be provided for adequately despite the current custody situation.
The courts will ask the child which parent they prefer to live with if the child is of age and mentally capable of expressing his or her personal preference.
Being an unfit parent automatically disqualifies a parent from obtaining custody, and may include parents who are mentally unfit to care for a child, or engage in drug and alcohol abuse. When both parents are unfit to care for a child, the judge may also look at alternative custody options. Third-party alternatives may seek custody of the child, but in most cases, custody is only granted to a third-party when both parents are unfit.
Third-party custody is often granted to family members, such as grandparents of the child.
Judges will weigh each factor before making a custody decision. In some states, the judge must address each legal factor to the parents. In other states, judges are permitted to state that all factors were considered without addressing each factor separately. The judge will go over which factors were weighed most heavily when determining child custody.
Long, drawn out legal battles aren’t required. Parents can determine custody and forge a visitation agreement without having to go to court to reach an agreement. This is the preferred method for the child so that they can avoid the emotional turmoil and stress of a legal battle.
The Micklin Law Group, LLC is a New Jersey law firm specializing in family law and estates. Attorney Brad Micklin was recently named to The National Advocates list of Top 100 attorneys from each state. To set up a consultation, call 973-562-0100.