Child Custody and Visitation: How Courts Decide What's Best for Children

Anybody going through a divorce involving children is familiar with the term “in the child’s best interest.”

It is the standard by which the courts make decisions about child custody and visitation. Unlike decisions made decades ago when the mother was automatically assumed to be the appropriate custodial parent, today’s family courts work from different assumptions to identify what arrangement will best serve the child’s overall well-being.

When two parents are vying with one another for custody or are unable to come to terms, the courts consider several different factors. These include:

• The age and needs of the child. The courts are aware that younger children have different needs than do older ones. They also consider factors such as mental or physical disabilities, emotional bonds with each parent and other family members, and the stability and continuity present in each household concerning schooling, community, and home life.
• The preferences of the child may be considered if the child is old enough and mature enough to express an opinion.
• Parental involvement in upbringing and nurturing will be considered. The more a parent has been involved in the day-to-day upbringing of the child and engaged in school and extracurricular activities, the more likely it is that they will be awarded more custody.
• Each parent’s mental, emotional, and physical fitness will be considered.
• Any history of abuse or neglect will have a significant impact on an offending parent’s right to custody or visitation.
• Willingness to communicate and co-parent with a former spouse is a key consideration. The courts want to know that a parent is supportive of the child’s relationship with the other.
• High-conflict situations are likely to lead to schedules that minimize interactions between the parents. The less one parent is willing to cooperate with the other, the less custody they are likely to be awarded.
• Each parent’s work schedule, living conditions, and third-party relationships

After considering these elements, a judge will decide whether it’s in the child’s best interest for the parents to have joint legal custody in which they share decision-making or sole legal custody in which just one parent makes important decisions about healthcare, education, and religious upbringing. They will also decide where the child will live, which may involve sole physical custody, where the child lives with one parent, or joint physical custody, in which the child splits time between both parents. Schooling and stability will play a large role in this decision. Where a parent has not been awarded physical custody, they may be assigned a visitation schedule. Depending upon the situation, this may be supervised or unsupervised and may or may not include overnight visits.

Child custody is one of the most emotionally fraught issues in divorce. If you need information or guidance on navigating a challenging situation, contact us today for assistance.