Law & Legal & Attorney Children Law

Factors Used in Determining Child Custody

    Best Interest of the Child and Factors

    • When determining custody the courts in virtually every state are charged with acting in the best interests of the child. Most states leave the criteria for determining the best interest to the courts, but many have specific, statutory criteria, known as the "Best Interest Factors." These include:
      1) The emotional ties between the parties and the child
      2) The parties capacity to give the child love, affection and guidance, etc.
      3) Ability to financially support the child
      4) Desirability of maintaining a continuous home environment for the child
      5) Moral fitness, mental and physical health
      6) Reasonable preference of the child, if of sufficient age
      7) Willingness to encourage the relationship between the child and the other party
      8) Domestic violence
      9) Other relevant factors

    Consideration and Weight

    • In states where the 'Best Interest Factors' are enumerated the court is usually bound to consider and make findings of fact on each, but the weight given to any one factor is left to the judge's discretion. If one factor is given more weight that another, the court must state the reason why on the record. It is also essential that a parent be prepared to address every factor.

    The Role of Child Support

    • It is important note that when the court makes a decision regarding custody it does so without any consideration of a party's past-failures to pay child support. Nevertheless, a court is free to consider any retaliatory actions the opposing parent may have taken because of unpaid child support, specifically a denial of parenting time.

    The Question of Gender

    • Though the Supreme Court has yet to rule on the use of gender as a factor in determining custody, most every state has eliminated the bias of automatically placing children with their mothers.

    Warning

    • It is important to understand that the law varies from state to state and anyone facing a custody dispute should always consult with a local, licensed attorney.

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