During separation and divorce, the most heated argument between the couple is always who takes custody of the child, if the marriage has been blessed with child after this comes the argument of sharing and splitting property; who takes what. The court takes custody of the child seriously and treats it with utmost care and priority because this is what determines the future of the child. If the judge grants the physical custody of a child to a parent it means that the parent has the right to have a child live with him or her for the amount of time determined by the judge. The judge, in some instances, can grant primary custody of a child to a parent. In this case, the child lives with the parent and the parent makes the decision on the upbringing of the child in exclusion of the other parent. In some other instances, the court may also grant joint custody of the child to both parents. In this arrangement, the child spends a significant amount of time with both parents at different times and both parents contribute to the upbringing of the child physically, emotionally, and financially.
Joint custody may be joint legal custody i.e. both parents have joint legal custody of the child. Legal custody of a child simply means having the legal rights to make decisions about a child’s wellbeing and upbringing. Joint custody may also be joint physical custody i.e. the child spends some amount of time with each parent at different schedules and times. Finally, joint custody may also be joint physical and legal custody.
It should, however, be noted that a parent may have legal custody of a child and not have physical custody and vice versa while a parent can have both legal and physical custody of a child, and both parents although divorced or separated can have both joint legal and physical custody of the child.
The critical factor that the judge first puts into consideration before granting the custody of a child to any of the parents is what is referred to in law as ‘The best interest standard’. The court uses this best interest standard to determine what would be best for the child. The child’s best interest comes first before that of the parents. What is best for the child is prioritized. Although, it is inarguable that both parents definitely have good and genuine intention towards the child in question and definitely want what’s good for the child the judge applies the best interest standard where what the court feels will be the best for the child comes first and outweighs the interest of the parents.
In determining the child’s best interest, the court looks into these crucial factors which can be said are the essential factors that the judge considers in granting custody of a child and they include; The court considers if there is confirmed evidence of domestic violence, domestic abuse, or neglect or negligence by either parent of the child? The court will definitely not going to grant custody of a child to a parent who is negligent, violent, or abusive.
The court weighs each parent’s ability to provide for the child’s physical needs, emotional wellness, and medical care. The court will not grant physical custody to a parent who is incapable of financially and physically catering to the needs of the child.
The court will also check the psychological effect the custody will have on the child. The court will ask themselves if the child is okay where he or she is currently is or if the child doesn’t mind a change in physical environment and custody. The court will also consider the wishes of the child. The court will ask the child where he or she would like to stay or which of the parent would the child like to be with at the moment. This will only the done if the child is considered old enough to make his or her own decisions.
The court also considers the living conditions and accommodations of each parents’ home. The court is interested to know if the child will have his or her own room in a parent’s house and have a spacious and conducive environment for him or herself.
The court will also evaluate the mental and physical health of each parent and ascertain which of the parents is more mentally and physically fit to be granted custody of the child. The court is definitely not going to grant custody of a child to a mentally unstable parent or physically unfit parent.
The court will also consider the quality of the relationship the child enjoys with each parent. The court puts into consideration which of the parent does the child have a more cordial and loving relationship with. The court is more akin to granting custody of a child to a parent a child has a blossoming relationship with. While these are some of the factors the court considers before granting custody of a child to a parent, there may be other extenuating factors the court will also look into in granting custody of a child to a parent depending on the peculiarity of each case.
The Best-Interests Standard
Many parents find this legal jargon confusing. Don’t all parents want what’s best for their children? For the most part, yes. However, in the majority of contested child custody cases, the judge determines what would be best for the children, despite both parents’ good intentions and competing wishes.
Other Factors That Could Affect Child Custody Arrangement
The Wishes of the Parents
The court does indeed take into account the wishes of each parent. Of course, when that becomes a problem is when both parents want full custody, or have not agreed on terms. Then, it is up to the court to decide what is best for the children based upon the other factors that they take under consideration. Often, if an amicable agreement, including child support, can be reached by both parents beforehand, the court will uphold that agreement unless there is some other factor that makes the court think that the arrangements are inappropriate.
The Wishes of the Children
Although the court does not put as much weight on what the child wants as what each parent does, or what the recommendations of social worker or other professional are, the court does take into consideration the child’s wishes. Children are not always the best judge of what is best for them and if the child wants to stay with one parent because they are more lenient or because they spoil them, the court will likely make a different recommendation. The court will also consider the age of the children before deciding how heavily to weight the wishes.
The Relationship Between Children & Each Parent
The court does look at the very important relationship between each parent and each child. If one parent has been an absentee parent most of the time and the child has developed a much stronger relationship with the other parent, then it will likely be the absentee parent that is awarded visitation rather than custody and must pay child support and other obligations. The court will often use a professional social worker to determine how strong the relationship is between parent and child in order to make the best custody choices for the child possible.
Mental & Physical Health of Children & Parent
If one parent is physically disabled and will have a harder time taking care of the children, this is something that the court will look at. Although most of the time disabled parents are as capable of taking care of their children as a non-disabled parent, the court must look at this when deciding who will get full-time custody, which will have partial custody or visitation, or pay child support. This is the same – and even more so – with mental disabilities. If one parent is mentally disabled in some way or suffers from an emotional condition, the court may decide to award custody to the other parent instead.
The Willingness of Parents to Work with Each Other
Each parent will be interviewed to find out just how willing they are to work with the other parent. The court does not want to deprive children of either one of their parents, and if awarding custody to one parent will severely restrict the amount of time they get to spend with the other parent, this will be a strong determining factor. The best way to avoid this problem is to make sure that each parent realizes that the other parent has the right to see their children as well and try to work out an amicable settlement beforehand.
The Majority Caregiver Up Until This Point
The court will consider which parent has been providing for the child the most. This doesn’t just mean providing financially because financial support is often done through child support. The court will consider all types of care such as transportation, teaching, feeding and, in general, parenting. The court will also consider factors such as the household set-up – where one parent works and cannot spend as much time with the children as the parent who is not employed or is only employed part-time.
The Parent’s Living Accommodations & Ability to Provide for the Child
The court will always consider the parents ability to provide for the child when deciding custody and child support. The court will look at the living arrangements first and foremost, to find out if the parent has room for the children, if the home is in a safe neighborhood and if it is clean and well-managed. Also, the court will look at where the residence of the parents are, and how close they are to other family members, schools, and places where the children have developed a normal routine.
How Much of an Adjustment Will be Required
Obviously, divorce will cause some adjustments to be made but the court wants to make as little of an impact on the child’s life as possible. That’s why the court will look at how much the child will have to readjust if they live mostly with one parent or another, or even with shared custody.
Allegations & Actual Instances of Abuse or Neglect
The court will not only consider any actual incidents of abuse or neglect when it comes to awarding custody, but they will consider allegations of neglect or abuse as well. If one parent has made allegations that turned out to be false, the court will weigh this heavily when deciding how to arrange custody.
Physical And Mental Wellbeing
The physical and mental health of your children is a key component of their overall best interests. If there is any sign of abuse, violence, mistreatment or even abandonment, a judge could remove a parent’s custodial rights. Similarly, if the judge notices signs that a parent is unfit to have the responsibility of a child or presents a potential risk to the child’s wellbeing, it could impact the custody decision.
The court will also consider how dedicated each parent is to the kids. If one parent makes it clear that the wellbeing of his or her children comes first, it can signal to a judge that this individual has the best interests of the children in mind.
Parental Strengths And Weaknesses
As the judge hears from both parents, he or she will also be listening for signals that indicate strong character and communication. Keeping the best interests of the children in mind, the judge will typically want children to remain in the custody of a parent who knows how to appropriately communicate and foster positive relationships with others. The judge will also consider which parent will act as a positive role model for the kids.
Family Instability – Causes And Consequences
Family instability is any factor that creates additional challenges within a family unit that ultimately affects a child/children’s cognitive, behavioral and emotional development, and places their development at significant risk due to the parents’ inability to effectively manage the home and the living environment.
Family instability can come in many forms; economic, emotional, social, and physical. The challenges and struggles of family instability can be passed on from generation to generation if the instabilities are not corrected or the family and children do not receive appropriate physical and emotional assistance when needed.
Types Of Family Instability
Economic or financial instability can come from a layoff, job loss, job change, or significant financial burden such a mortgage, car payment or medical debt. It impacts the families’ ability to meet the financial needs required to maintain a safe standard of living which includes sufficient food, shelter, medical and utility needs to have a safe and functional home. Children living in an economically unstable home may not have sufficient food, clothing, or utilities; if old enough they may be forced to work to help make ends meet in the home.
Emotional instability in a family is often expressed through neglect, anger, anxiety and fear. Parents that are working demanding jobs or multiple jobs may not have time to adequately show attention and affection toward their children. They may overly express anger and frustration toward the children due to fatigue and share fears with children about adult concerns placing undue stress and anxiety on children. Love can also be an emotional instability when it becomes excessive and or inappropriate. Social instability in a family is expressed through neglect of tasks around the home and through anger and anxiety expressed by adults. The adults fail to express healthy social interactions which impact how the children will interact with each other and with other adults. They do not receive appropriate social training and this leads to dysfunction in the educational setting among peers, teachers and greatly impacts academic success.
Physical instability in a family can come in two forms; the first one is the physical setting in which the family resides. The child may reside in a home that is not physically safe or supportive; it may have no heat, electricity, water, sewer disposal. The house may be in general ill repair. The second physical instability comes from the physical interactions that occur between family members. A child may be exposed to a physically threatening environment where items are thrown, broken, or used to demonstrate fear and anger.
Causes Of Family Instability
While family instability focuses on these four forms of economic, emotional, social, and physical the cause of these instabilities can be numerous. Job loss, economic hardship, divorce, separation, infidelity, incarceration, extended family, unexpected pregnancy, sexual abuse, physical abuse, substance abuse, foreclosure, medical situation or emergency can all contribute to family instability. Certain socio-economic demographics and cultural groups experience higher levels of family instability.
Consequences Of Family Instability
Children living in homes that experience family instabilities may experience extreme emotional expressions and extremes; they will suffer cognitively and often struggle in school. They will often have difficulty socializing and expressing age-appropriate social behavior. They will often show higher levels of anxiety and have irrational ideas and fears. Children may have clothing that is dirty or doesn’t fit; they may show signs of malnutrition or have eating disorders.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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