So, what do judges look for in child custody cases when deciding to award sole or joint custody? Here are five key complex issues the court must confront when adjudicating child custody cases. Except when it is proven not to be in the child’s best interests, the court works with parents to maximize their time with their children.
By Maryville University’s Forensic Psychology & Criminal Justice Department
Making the right decision in a custody case is crucial to ensuring the child’s wellbeing. However, with limited time for arguments and each parent telling a different story, any bias on the court’s part may lead to a decision that is not in the best interest of the child, including placing them in a home where they are at risk of abuse or neglect.
Given these high stakes, in contentious cases, judges may order a custody evaluation to be administered by a qualified expert such as a forensic child psychologist. Forensic psychologists are especially valuable in tough cases where grounds for full custody of a child are disputed or the fitness of a parent or guardian is in question. Their years of experience help judges come to a decision in the best interests of the child.
So, what do judges look for in child custody cases when deciding to whom to award custody? Here are just a few of the complex issues the court must confront when adjudicating child custody cases:
- The age of the child.
- The relationship between the child and each parent.
- Where the child’s siblings live.
- The mental and physical well-being of the parents.
- The parents’ caretaking capacity.
5 Factors Judges Consider in Child Custody Cases
In general, judges favor shared custody arrangements and do not seek to unnecessarily deprive any parent or guardian of contact with their child. Judges are guided by the best interests of the child when making decisions on child custody.
Sometimes that decision is more straightforward than others. To illustrate the complex issues judges confront when adjudicating child custody cases, consider some of the factors they must consider.
1. Age of Child
Family law judges in the U.S. do not follow any across-the-board rules when it comes to age-appropriate custody planning. Most states are moving toward an approach centered on the best interests of the child at each developmental stage. However, some states have laws that designate a certain age at which children receive increased decision-making power in custody cases.
It is important to note that age is not necessarily correlated with development. However, some general guidelines exist.
- For children ages 0 to 2, who are in the sensorimotor stage, according to Jean Piaget’s theory of cognitive development, maintaining the bond between the child and each parent is prioritized. Visitations should be frequent and time away from either parent should be minimized.
- Children ages 3 to 7, in the preoperational stage, are better able to tolerate separation, but they continue to need consistency, structure, and frequent contact with both parents.
- Preteens ages 8 to 11, in the concrete operational stage of development, will typically respond well both to spending some time away from either parent and frequent visitation. Depending on the school and extracurricular activities and the child’s preference, spending more time with one parent than the other may be a better fit.
- Children age 12 and into adulthood are usually independent and seeking an identity outside of their parents. Judges encourage parents to be flexible, listen to older children’s needs, and solicit their input when establishing a custody schedule.
2. Relationship Between Child and Each Parent
Here again, when it comes to assessing the relationship between the child and each parent, no strict rules exist, only guidelines. Judges are responsible for evaluating the quality of the relationships. If a child has a strong attachment to one parent to the point where separation causes distress, a judge may agree to a disproportionate physical custody arrangement favoring that parent. But, if a forensic child psychologist or other mental health professional deems that attachment detrimental to the child’s best interests, more frequent custody exchanges in conjunction with family therapy may be ordered.
Older children who are able to express a preference for one parent over the other can also influence the court. A child who is vocally opposed to living with one parent is certainly a powerful witness. Still, a parent must demonstrate that they are able to create and sustain an emotional and physical environment where their child can thrive. A child’s preference is not the only factor weighing on the court’s mind.
3. Location of Child’s Siblings
Courts usually try to keep siblings together. When parents wish to separate siblings in a custody agreement, they must present a strong case to the court that centers on the children’s best interests. However, in some cases, the court may take it upon itself to separate siblings.
If the safety of a child is in question – for instance, if a sibling is bullying or abusing the child – a judge may order a separate custody arrangement for siblings if one parent is better equipped than the other to meet the abused child’s needs. A psychologist or other mental health professional will likely be consulted in such cases.
The preference of the child may also compel a judge to separate the child from their siblings, particularly in the case of older children who have more difficulty getting along with one parent than the other. Judges will not assign custody solely due to preference, but if it can be established that one home is better for the child’s well-being than the other, the court will allow it.
4. Mental and Physical Well-Being of Parents
Parents’ mental well-being is of great concern to a judge in a child custody case. Psychological disorders, overwhelming stress, drug or alcohol abuse, and mental health crises can prevent a parent from acting in their child’s best interests. Judges may order parents to seek therapy or attend counseling as part of a parenting plan. More punitive measures, such as mandatory drug testing and monitored visitation, may be ordered in cases where a parent’s capacity to safely care for their child is in question.
Judges also look at a parent’s relationships with other adults, including their nonmarital sexual relationships. Having sexual partners present while their child is in the home or keeping company with criminals can land a parent under court scrutiny. A judge may order a parenting plan that restricts contact with certain adults when the child is in the parent’s custody.
A parent’s physical well-being is important to the court as well. Untreated health problems can impact a parent’s ability to care for a child on their own. Disabilities can also affect whether or not sole physical custody is appropriate. Here, family support can provide a mitigating factor.
5. Parents’ Caretaking Capacity
Judges consider whether each parent has the capacity to abide by a parenting plan when making child custody decisions, and they consider each parent’s income. The availability of family support is also important: grandparents or other relatives who can help financially or share child care responsibilities bolster a parent’s case for sole or primary custody – especially if the other parent lacks that support.
Except when it is proven not to be in the child’s best interests, the court works with parents to maximize their time with their children. For example, if a parent has a job that makes them unable to pick a child up from school and family support is unavailable, partial physical custody can be awarded during the summer months. The child would reside primarily with the parent best able to meet their needs during the majority of the year.
This article has been excerpted and edited from “What Do Judges Look for in Child Custody Cases?” (Maryville University, 2021) by the Online Bachelor’s in Forensic Psychology & Criminal Justice Department. The full guide is available here: https://online.maryville.edu/blog/what-do-judges-look-for-in-child-custody-cases
Report from the Custody Committee of the ABA’s Family Law Section
The Custody Committee’s judges, family lawyers, and psychologists consider and deal with the all-important issue of child custody during and after divorce.
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