The end of a marriage is always a sad and sometimes heart-breaking event, usually marked by disappointment, betrayals and the loss of expectations. However, most times, there are lots of financial, emotional, legal, parental and practical aspects that require changes and adjustment which can take some time.
Nevertheless, divorce serves an important purpose by emotionally and legally freeing people from unwanted relationships to enable them to find and form a more stable relationship with others or themselves.
Divorce is becoming less adversarial and contentious with approaches like mediation and negotiation. This is especially beneficial for the children, who are at a disadvantage and have their needs often overlooked in contentious divorces.
Divorce and Child Custody
In most cases, the custody battle is what makes the divorce even messier; with both parents fighting for the right to have custody of the child without considering what exactly might be best for the child. This is where the courts step in to make sure that the best interest of the child is well represented.
Over the 5 years that I’ve been practicing law, people always ask me what the court considers in determining child custody award. Most of the time, the facts of each case differs and varying laws across the country are also a factor. However, regardless of the courts’ jurisdiction, most courts when considering child custody base their decisions on the best interests of the child.
Sometimes, if the child is older, the court may give consideration to the parent he/she would prefer to live with while in some very contentious cases, the court may appoint a guardian ad litem to represent the child’s interests.
Factors that Impact What’s in the “Best Interest of the Child”
In considering what’s in the best interest of a child, the courts will in some cases consider some of the following factors:
• The age, sex, mental, and physical health of the child.
• The willingness or unwillingness of the parent to accept custody.
• The ability of the parents to agree, cooperate and communicate on issues relating to the child.
• The safety of the child and any history of domestic violence, alcohol or drug abuse of any parent.
• The mental and physical health of each parent.
• The lifestyle of each parent, to determine if the child will be exposed to a hazardous environment and which parent can provide the child with a stable environment.
• The emotional bond between the child and each parent.
• The ability of each parent to provide for the basic needs of the child, including food, clothing, shelter, medical care and guidance.
• The special needs of a child.
• The ability of the parent to provide adequate and quality education to the child.
• The child’s established living pattern in relation to religious training, school, and extracurricular activities, and how a change in the child’s living situation would impact him.
In some instances the court may take into consideration which parent would not alienate the child from the other parent; the parent who seems more likely to encourage the child to maintain a relationship with the non-custodial parent.
Types of Child Custody
After considering these factors, in instances where the court finds that both parents are responsible, the decision might come down to the type of custody that would best serve the child’s interest. The court might order one of three types of custody:
(1) sole custody; awarding both the legal and physical custody of the child to one parent/spouse.
(2) joint legal custody; Both parents/spouses have joint responsibility for all major decisions regarding the child’s welfare, health and education.
(3) joint physical custody. In this 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.
Getting Legal Help with Child Custody
Divorce and child custody cases can be messy, highly emotional and stressful for parents and children. You should not attempt to represent yourself in a child custody case because it could be very risky. Before moving forward with a divorce especially where a child custody battle is involved, you should be well informed and consult with a family and divorce lawyer or professional who will assess the advantages and disadvantages of your case and advise you accordingly on the laws in your state.
Featured photo credit: Rosalind Sedacca via jenningswire.com