Who Gets Custody of the Children?

How do courts decide who gets physical and legal custody of the children? What if my child has already told me who she wants to live it?

“Best interest of the child”—the phrase that pays.  As you may know at this point, reasonable minds may disagree.  What mom, dad and the judge thinks is best for the child may all be different. This overarching principle is the controlling factor in each and every child custody case that comes before a judge. So, what then exactly does ‘best interest of a child’ mean? Basically, it can involve all aspects of the child’s life, from past issues of any abuse or neglect suffered by the child, to health, safety, education and general welfare. Courts will also look to see what the status quo is, and determine whether it should be modified (although this is usually less of a factor for divorcing parents who have yet to physically separate and need an initial custody determination).

If your child has expressed a preference for a primary custodian, the court can consider this declaration, with some reservations. First, the age and maturity of the child are important considerations in a child’s preference. If the child is 14 or older, the court must listen to the child. If the child is any younger, the court can determine whether it is in the child’s best interest to listen to their opinion. The California legislature has reasoned that at age 14, the child is emotionally and rationally mature enough to explain why they prefer to live with a specific parent over another. However, it is ultimately within the court’s discretion to follow the child’s preference, particularly if there is evidence that the child has been alienated, coached, or prefers to live in a home where discipline is nonexistent and they can leave at all hours of the night, or where homework and education is not a priority.

Courts will also look to the relationship between the parents to determine who will be a better choice as the primary custodian. If there is evidence of a parent’s intentional alienation from the other parent, refusal to communicate, interference with the other parent’s timeshare, or even a basic failure to cooperate, the courts can award custody to the other parent – even if the alienating parent has been the primary caregiver. Courts in California take co-parenting very seriously, and there are several options for parents to exercise their co-parenting skills even in high-conflict cases. The lesson here is to always take the high road and cooperate with the other parent to the best of your ability, lest the court determine you are an uncooperative parent, to the detriment of your child.

Other things the court can consider in a question of ‘best interest of the child’ is the relationship or bond between the parent and child, the education or schools available to the child, depending on where they live, or even the health and ability of parents to care for the children. Things the court cannot consider are the gender, race, religion, sexual orientation, handicap or financial status of the parent. Many people think the courts favor mothers over fathers in custody determinations simply on the basis of their gender or because of the outdated ‘tender years doctrine.’  The truth is that many times mothers take on the primary caretaker role because of traditional gender expectations within the nuclear family. However, this is changing, and you will likely begin to see more and more father’s taking on a stronger caretaking role, especially after a divorce.

Overall, the courts have a responsibility to ensure the welfare of a child before any other considerations. The behavior and choices of a parent can be considered, while their demographic characteristics cannot. If your divorce has a custody battle ahead, keep your eyes on the prize: for your child to have a healthy relationship with both parents.  Be diligent about the things you can control – like your attitude, communication and cooperation with the other parent. It will benefit you, and ultimately your child, in the long run.

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