Family Law

Deciding Who Gets Custody of Children in a Divorce

All state courts decide custody based on the best interests of the children. Judges are supposed to make decisions based on this alone, but it is not that simple. Different states define a child's best interests in different ways, and not all of them list exact criteria in their family law codes.

Judges Do Not Like to Force Change on Children

The best interests standards in most states protect children from being plucked out of one home and forced to move into another just because their parents are divorcing. If parents live separately for a while before filing for divorce, the parent the children have been living with usually has an edge, especially when that parent stays in the family home. When parents have not been living separately, the one who normally took care of the children during the marriage may be favored.

Judges Want Parents to Put Their Children First

Courts want divorcing parents to look past their hard feelings for each other and make sure their children have time with both of them. Courts frown on interference with visitation.

Children's Preferences Count

Judges in some states will consider a child's wishes when deciding custody. They will not automatically place the child with the preferred parent but will include a child's wishes in their decisions. This is particularly true when the children are teenagers.

Judges Consider Domestic Violence

If either parent has a history of domestic violence, judges must consider this as well in some states. However, if one parent falsely accuses the other of violence, this false accusation can work against the parent who makes it.

Some Issues Don't Affect Custody

Spouses often believe that the other parent's bad behavior should influence a judge's custody decision. Although some state courts weigh issues such as a parent's moral character, judges generally may not consider these things unless the parent's behavior has a direct effect on the child. For example, a parent might have had an affair but, if the children were not aware of it, the judge probably will not consider it in a custody decision. A parent with a history of drinking and driving, on the other hand, might be denied custody because habits like this put the children at risk.

A Family Law Lawyer Can Help

The law surrounding child custody is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a family law lawyer.

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This article was verified by:
Kourosh Arami, Esq. | April 23, 2015
53 West Jackson Boulevard, Suite 1633
This article was verified by:
Ben J. Raia | May 18, 2015
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