What does the court consider when determining whether I will be awarded custody, or when determining the type of possession or access I will have with my child?
Please note that the information being provided is intended to provide general knowledge and should not be used reviewed with caution. This information is not intended to provide advice to any person and is not a substitute for communication with an attorney. For further, information please consult an attorney, preferably me.
If parents are fighting over custody, possession or access to a child, the court will primarily consider the child’s best interests. There have been several cases that have given courts guidance in determining what is in the child’s best interests. Please note that the information being provided is intended to provide general knowledge and should not be used reviewed with caution.
Factor 1 for Determining the Best Interests of a Child for Custody: Parental Fitness
One factor that the court will consider in determining custody is the best interest of a child as it relates to the parental fitness of a parent. In evaluating the best interests of the child, one factor for determining whether a parent is fit is a history or pattern of past or present child neglect, abuse of a child or parent, or sexual abuse of a child or parent or family violence. If the court finds that there has been a credible history or pattern of past or present child neglect or physical abuse, by one parent directed against the other parent, spouse, or child the court is prohibited from awarding custody to the abusive spouse. It is further presumed that awarding the abusive spouse a standard possession order is not in the child’s best interest.
Another factor that the court will consider in determining the parental fitness of a parent in evaluating the best interests of the child is drug or alcohol abuse. It is important to note that a parent who suffered from drug or alcohol abuse that occurred years earlier and is no longer an issue is less meaningful for the court’s consideration than a parent who has recently or currently using. The longer the gap between the time that a parent is abusing drugs or alcohol, the less likely that the court will consider the parent’s usage as relevant to the question of conservatorship, possession and access.
Finally another important factor for the court to consider when looking at parental fitness in the context of evaluating the best interests of the child is sexual conduct. The court can consider whether either party’s sexual conduct renders that party unfit to act as a parent. Courts have concluded that this issue becomes most relevant when a child has been exposed to a parent’s sexual conduct or has had access to evidence of a parent’s sexual conduct. For example, if the child is being exposed to a parent’s adulterous affair, or the child is being exposed to explicit videos or magazines then a parent’s fitness would likely be questioned.
Factor 2 for Determining Best Interest for Custody, Possession and Access: Ability to Care for Child
The court will look at each parent’s parenting skills and attempt to determine which parent is the current primary caregiver of the child and in the past. Usually, both parents cooperate to some extent on the care of the child, so the court must compare each parent’s parenting skills. The court will look to which parent is providing more or better care of the child. Parents should be prepared to discuss their involvement in feeding, bathing, grooming, schooling, participating in extracurricular activities, setting up doctor’s and dental appointments, arranging birthday parties, arranging play dates with friends, providing discipline, and any other factor that shows that you are better prepared to provide custody of the child. The court will also be interested in parenting styles (relaxed, strict) and temperament (quick temper) when deciding the child’s best interest.
In evaluating best interest based on ability to care for the child, the court will also consider the physical, psychological and emotional needs and development of the child both currently and in the future. For example, does the child have learning disabilities, psychological issues or a physical disability and does one parent have more free time or has one parent had more involvement in treating these needs.
Another factor that the court will look at to evaluate best interest based on ability to care for the child is whether either parent poses any physical or emotional danger to the child now or in the future. Obviously, physical or emotional danger can encompass many things. Physical or emotional danger can include child abuse, criminal involvement, neglect, drug or alcohol involvement and many other things. However, the fact that a parent’s actions does not amount to abuse or neglect does not prohibit a parent from pointing out to the court actions of the other parent that is capable of physically or emotionally endangering the child. (Please also review the factors below regarding parental unfitness.)
The court will also consider the stability of each party’s home when evaluating a child’s best interest based on a parent’s ability to care for the child. The court will want to avoid unnecessary disruption of the child’s routine and environment whenever possible. When all things are equal between parents, the court will prefer to keep children in the marital home. The court prefers to make things easier on a child by changing as little as possible with regard to their existence. If you intend to seek custody of the child, you should strongly consider remaining in the marital residence and keep the child in the same school district and routine, if possible. (Even if you are unable to afford the mortgage or rent there may be options for you to remain in the residence.)
The court will also look at each parent’s plans for the child when determining a parent’s ability to care for the child. The court will want to hear a parent’s plans for the immediate future. (Ex. work hours, daycare provider, school enrollment) as well as the parent’s plans for the future.)
In determining a parent’s ability to care for a child, the court will also look to each parent’s ability to cooperate with one another. The court will look at whether a parent is able to give the child first priority or whether a parent refuses to share decisions with another parent. The court could deny custody and limit a parent’s possession if the court finds a pattern that demonstrates that a parent refuses to cooperate with the other parent. Therefore, if you are seeking to be named primary managing conservator of a child cooperate with the other parent unless you can show good cause to refuse to cooperate. The court will judge harshly parents who
Factor 3 for Determining the Best Interests of a Child for Custody: Maintaining Family Relationships
The court is concerned with maintaining contentment within the home. One of the major best interest factors that the court can consider when maintaining family relationships is the child’s wishes or preferences. In a non-jury trial, when a child is older than 12 years of age the court must interview a child in chambers who wishes to express a preference as to whom he/she wants to live. In a non-jury trial when a child is younger than 12 years of age, the court may interview the child in chambers if he/she wishes to express a preference but is not obligated to talk to a child or consider the child’s preference. In a jury trial, the child is not entitled to make his/her preference known to the judge in chambers. The child would be forced to express his/her preference in court before the jury.
When determining what is in a child’s best interest in relation to maintaining family relations, the court may also consider the geographic distance between parents. The geographic proximity other parties is important because distance complicates decisions about schools, after school activities, health care providers, and other daily issues. (See In Re. Marriage of Bertram, 981 S.W. 2d,820). If custody is contested and the parents are unable to reach an agreement, the court will most likely impose a geographic area to which the children must reside.
Another factor for the court to consider in evaluation a child’s best interest in relation to maintaining family relations is the presence of step-siblings, grandparents, aunts, uncles and other extended family in the community. Obviously, family can be very important to a child. Relationships with grandparents and step-siblings can be devastated when a parent is awarded custody and does not ensure that the relationship is continued with the other part of the family. Extended family is also very important for parents, especially single parents who may need help with family to provide daycare and emotional support. The court can consider the extent to which a parent can encourage and accept a positive relationship between the child and other parties.
The court can also consider whether either party has ever knowingly made a false report of child abuse. Clearly, when a parent lies about abuse and neglect the parents’ ability to maintain family relations diminishes immediately. Not only does a false report poison others minds and create a suspicion that a parent will harm the child, but it also can force the accused parent to take preventative measures to protect himself from such charges. If a parent suspects abuse, that parent should be prepared to explain all reasons that he/she suspects the other of abuse. That parent should question the abusive parent when you suspect that abuse is occurring. Further, preferably before bringing any allegation a parent should document in writing the accuser’s explanation of suspected abuse of the child. If a child or a parent has been a victim of abuse, all injuries should be photographed. If the court finds that a report of child abuse is false, the court may restrict access to the child by the person who made the report. Therefore, it is vital that the accuser be prepared to prove that there accusation is not knowingly false.
Finally, when considering the best interests of the child in relation to maintaining family relationships the court can evaluate whether there is any risk of international child abduction. If the court determines that there is a risk of one parent fleeing the country, the court may factor that into its equation when determining custody. Further, the court may also enact further measures to prevent a parent from being abducted. For instance, the court could impose passport restrictions and limitations on possession for the parent who may be likely to abduct.
What factors can the court NOT consider when evaluating the best interests of the child?
The court is prohibited from considering a person’s marital status when deciding the custody, possession or access of a child. (i.e. whether the parent is married or single.)
The court is prohibited from considering a person’s gender when deciding the custody, possession or access of a child. This means that there is no longer a presumption that the mother should always be the person who is permitted to establish custody.
The court is generally prohibited from considering a person’s race or ethnicity when deciding the custody, possession or access of a child. The U.S. Supreme Court has held that a court cannot consider private racial biases, and the possible injury they might inflict on a child in matters of conservatorship. (See Palmore v. Sidoti, 466 U.S. 429, 433-34. (1984).
Finally the court is generally prohibited from considering a person’s religious beliefs when deciding the custody, possession or access of a child. The court is not allowed to consider a person’s religious beliefs even if those beliefs are unusual or abnormal. The court may, however, consider a person’s religious beliefs when determining custody and possession when the judge or jury determines that a person’s religious beliefs and/or practices are illegal, immoral, or harmful.