If you know anyone who has gone through a divorce with children, you might have heard the phrase—”the best interests of the child”. Basically, the Court looks at the totality of the circumstances of each case on an individual basis in order to determine which parent is better suited for custody. Although a Court can grant joint custody after trial, it is not often done as, if the parties have been so acrimonious that a trial involving custody was necessary, it is unlikely that the parties are of a mindset to actually work together amicably. As such, joint custody is normally only granted when the parties agree to such.
In looking at the “totality of the circumstances” in order to determine which parent is better suited for custody, the Court has traditionally weighed various factors. The factors, listed here, can become a moving target as the times and society change:
1. Parental fitness—the parent’s physical and mental health; the use of drugs and alcohol; sexual activity; lifestyle; neglect, abuse or abandonment of the parties’ child or children; physical, sexual or emotional abuse of the other spouse; the parents’ relative economic status; and a parent’s criminal record is also a factor to be considered.
2. Cooperation—the willingness of each parent to foster the child’s relationship with, and access to, the other parent.
3. Child Development—the ability to provide for the child’s emotional and intellectual development; the quality of home environment and the parental guidance provided; physical safety of the home; ability to best nurture the child’s emotional, social, physical and intellectual needs;
4. Primary Caretaker—which parent has been the primary caretaker of the child or children throughout the marriage. The Court looks to the following actions to determine the primary caretaker: the preparation and planning of meals; bathing and grooming the children; purchasing, cleaning and caring for clothes; medical care; arranging for the child’s social interaction after school and transporting the child to playmates and after school activities; arranging babysitting and daycare; putting the child to bed at night and attending to his or her needs during the night; waking the child in the morning and helping him or her wash, dress, etc.; discipline; and religious and secular education.
5. Which parent will help maintain stability for the child.
6. Which parent, if they differ, wishes to keep all siblings together.
7. The child’s preference.
As such, the Court, when making a custody determination, must take into account all of those factors plus any other factors it deems necessary, along with the Court’s perception of each parent from their testimony, and make a decision as to which parent is better suited for custody.
Knowing this, most parents come to a mutual agreement regarding custody and visitation. In child custody proceedings, most parents view the “known” of their agreement to outshine the “unknown” of any possible judicial determination of custody. However, not all parties can come to an agreement on custody.
If the parties are distant as to custody and visitation issues, the Court will most likely appoint an “Attorney for the Child” (AFC). In a divorce case, when an AFC is appointed, the parties are usually Ordered by the Court to pay for the AFC’s fees on a pro rata basis based upon their respective incomes. The AFC is the child’s attorney throughout the case, including at trial. The AFC is there to advocate for the “best interest of the child”. You will find out that some AFC’s are better than others. Some meet with their clients (the child(ren)) and actually listen while others show their faces once or twice and make broad assumptions. In an effort to ensure the best AFC for the job is assigned, the Court will usually ask the attorneys on the case to come up with a list of names to choose from or agree on a mutual AFC in an effort to ensure the parties’ child(ren) have the best representation they can.
Should there be a question of the mental fitness of one or both parents, the Court can order that a forensic evaluation be completed. This is a psychiatric/psychological evaluation via standardized tests and one-on-one sessions with the Court appointed psychiatrist/psychologist. A report is then generated by the psychiatrist/psychologist for the use of the attorneys and Court. The parties are never allowed to actually read the report. Should your attorney feel that the report does not shed the best light upon you as a parent, a private psychiatrist/psychologist can be hired to review the report and contest its validity at trial.
Should the case go to trial on the issue of custody, the Court can hear testimony from both parents, psychiatrist/psychologist, teacher, religious figure, doctor, etc. These witnesses will be examined and cross-examined by the attorneys and the AFC and sometimes even the Judge. Once the Court has heard all the testimony, the Court will take anywhere from sixty to ninety days to render a written decision (you will not get a decision on the day of the custody trial). From there, if you do not agree with the Court’s decision, you can appeal it or, at a later time, seek to modify it.