Winning a child custody case means dedicating oneself to the hard work of proving which parent will serve the child’s best interests in terms of education, social and emotional development, health care, spiritual and moral guidance, economic stability, and many other factors.
Courts will routinely inquire into the “best interest” of the child, and this inquiry may involve taking a close look at the child’s home life, family relationships, educational circumstances, medical, health and safety questions, cultural, social and religious experiences, economic situation, and other criteria. In most states, the question of custody is divided into two basic issues: (1) legal custody, and (2) physical custody. Legal custody addresses the power to make decisions for the child, and to actively partake in the major questions involving the child’s upbringing. A couple that agrees to “joint legal custody” essentially agrees to communicate in order to address the major issues concerning the child’s growth and development, and special circumstances which arise from time to time. Sole legal custody means that only one parent is exercising the decision making role.
Physical custody, sometimes referred to as residential custody, refers to which parent actually keeps the child at his/her home overnight. Historically, parents have been classified as either being the “custodial parent” or the “non-custodial parent.” However, in modern times, many parents achieve shared parenting arrangements that allow them to divide the physical custody of the child. In this manner, parents often work out a time-sharing arrangement that serves the child’s best interest while fitting into each of their respective schedules. In contested child custody cases, the parties are unable to agree on legal custody and/or physical custody, and it is necessary to hold a trial on these issues. The court will consider many factors in determining who gets custody of a child. In many states, these factors are published as part of the state’s statutes.
Among the common factors which appear in various state statutes are:
- The parents’ ability to agree, communicate and cooperate in matters relating to the child.
- The parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse.
- The interaction and relationship of the child with its parents and siblings.
- The history of domestic violence, if any.
- The history of child neglect, abuse or abandonment, if any.
- The safety of the child and the safety of either parent from physical abuse by the other parent.
- The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision.
- The wishes of the parents.
- The needs of the child.
- The stability of the home environment offered.
- The quality and continuity of the child’s education.
- The child’s adjustment to home, school and community.
- The fitness of the parents.
- The moral and ethical character of the parents.
- The geographical proximity of the parents’ homes.
- The extent and quality of the time spent with the child prior to the separation.
- The parents’ employment responsibilities.
- The age and number of the children.
- The pecuniary prospects and general financial welfare of the parents
It is the job of a child custody attorney to gather evidence that will support all of the applicable factors that will help you win your child custody case. If the case goes to trial, it may be necessary to present evidence in the form of documents, photographs, diagrams and tape recordings. It may also be necessary to call various witnesses on behalf of the parent who is seeking custody, including expert witnesses, such as a child psychologist or other specialist who can comment on which parental relationship will serve the best interest of the child.
Cases involving multiple children may raise additional questions, particularly if the children are different genders, or if they are not close in age. Split custody (not to be confused with joint custody) involves each parent taking custody of one of the children. While this arrangement is generally not preferred, it may be appropriate in certain cases.
A court may grant temporary custody to one party at the outset of a custody dispute until there is sufficient time to hold a hearing and consider the evidence presented by both sides.
In some cases involving specific family circumstances, a court may grant custody to somebody other than the child’s parent. For example, a court may grant custody to a grandparent, to an aunt, to an uncle, or to an interested party who has some connection with the child. In most states, a biological parent will be given a preference over a non-parent in a custody dispute, but this preference can be overcome if there is strong evidence pointing to the best interest of the child. For more guidance on custody and visitation, be sure to read our library of custody tips.