14 Key Factors Courts Consider in Determining Child Custody

14 Key Factors Courts Consider in Determining Child Custody

Over the more than 25 years that I've been practicing law, I've often been asked what a court will look at when determining a custody award.

While I can tell you that no two cases are alike, I can safely say that while state laws vary across the country, a court will generally consider the following:

1. The parents' ability to agree, communicate and cooperate in matters relating to the child.

2. The parents' willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse.

3. The interactions and relationship of the child with its parents and siblings.

4. Any history of domestic violence.

5. The safety of the child and the safety of either parent from physical abuse by the other parent.

6. The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision.

7. The needs of the child.

8. The stability of the home environment offered.

9. The quality and continuity of the child's education.

10. The fitness of the parents.

11. The geographical proximity of the parents' homes.

12. The extent and quality of the time spent with child prior to or subsequent to the separation.

13. The parents' employment responsibilities.

14. The age and number of children.

Whatever the criteria used, a court will also examine the criteria in light of "the best interests of the child". I also recommend the use of a mental health professional to appear as an expert and lend his or her professional opinion into the considerations.

There are also different types of custody. Once the above factors are considered, a court may order one of three types of custody: (1) sole custody, (2) joint legal custody, or (3) joint physical custody.

"Sole custody" awards both the legal and physical custody to one spouse. "Joint legal custody" provides that both spouses have joint responsibility for all major decisions regarding the child's health, welfare and education. However, in a joint custody case, the court will usually designate one parent's house as the child's principal residence and determine a time-sharing plan for the other parent.

Susan Reach Winters is an attorney in the family law practice at Budd Larner. For more on Susan, go to: www.buddlarner.com.

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