How Is Child Custody Determined?

All states use a “best interest of the child” standard in disputed custody cases. This is a rather amorphous standard, and one that lends itself to judges’ subjective beliefs about what’s best for children. There are some factors, though, that you can expect a judge to consider.

Age Of The Children.

Although the “tender years” doctrine has long been officially out of fashion, some judges still believe that younger children should live with their mothers, especially if the mother has been the primary caregiver. (Certainly, a nursing baby will do so.)

Each Parent’s Living Situation.

There’s a bit of a chicken-and-egg dilemma surrounding the issue of where parents live and how that affects custody. Sometimes, the parent who stays in the family home is granted custody of the children because it allows the children stability and continuity in their daily lives. Sometimes, the parent with custody is awarded the family home, for the same reason. If you are crashing in your best friend’s guest room while you get back on your feet after the divorce, don’t expect to get primary custody of your kids. If you truly want to spend a significant amount of time with your children, make sure your living situation reflects that. The proximity of your home to your spouse’s may also factor in to the judge’s decision. The closer you are, the more likely the judge will order a time-sharing plan that gives both parents significant time with the kids. The location of their school and their social and sports activities may also matter.

Each Parent’s Willingness To Support The Other’s Relationship With The Children.

The judge will look at your record of cooperating—or not— with your spouse about your parenting schedule. The judge might also want to know things like whether you bad-mouth your spouse in front of the kids or interfere with visitation in any way. The more cooperative parent is going to have an edge in a custody dispute—and a parent who’s obviously trying to alienate a child from the other parent will learn the hard way that courts don’t look kindly on that type of interference.

Each Parent’s Relationship With The Children Before The Divorce.

It sometimes happens that parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended. In many cases, this desire is sincere, and a judge will respect it, especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate a parent’s change of heart and ensure that the custody request isn’t being made primarily to win out over the other parent.

Children’s Preferences.

If children are old enough—usually, older than 12 or so—a judge may talk to them to find out their preferences about custody and visitation. Some states require courts to consider kids’ views, but others disapprove of bringing the kids into it at all. The judge also may learn about the children’s preferences from a custody evaluator.

Continuity And Stability.

When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn’t good for kids. So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.

Abuse Or Neglect.

Obviously, if there’s clear evidence that either parent has abused or neglected the children, a judge will limit that parent’s contact with the children. Every situation is different, so the judge may consider other factors in deciding custody in your case.

Factors Excluded in a Child Custody Evaluation

A child custody evaluator may not give preference to either parental gender, nor may he or she consider the following when determining parental fitness:
• Race
• Sexual orientation
• Religion
• Financial status

Things Not To Do During A Child Custody Battle

If you’re preparing for a custody battle, it’s understandable to be stressed and concerned. You’re likely facing the dissolution of your marriage and may have a lot of anger and hurt feelings towards your ex-spouse. You might be frustrated imagining a future where you can only see your children on certain days.

In spite of the stressful situation, it’s important to approach a custody battle on your best behavior. When you’re fighting for custody, a judge will be looking at your conduct and your ex-spouse’s conduct to determine what kind of custody agreement is in your child’s best interest. Your ex-spouse might also be acrimonious and looking for ammunition to use against you.

If you want to have your best chance of winning your case and getting custody of your children, it’s important to understand the multiple things that can be used against you in a custody battle; and to conduct yourself in such a way as to limit the damage. Mostly, this boils down to two rules:
• Always conduct yourself as if the judge is watching
• Prioritize your children’s well-being, which includes demonstrating a willingness to healthily co-parent.

Physical Altercations

This likely goes without saying, but you should avoid physical and any other sort of heated altercations with your spouse and children; especially the children. We know that tempers may be running high, but hitting someone in anger is a crime and can land you in jail. Even if charges ultimately aren’t pressed, it’s the kind of thing that can negatively impact a judge’s perception of you when it comes to light.

Verbal Altercations

It’s also important to avoid yelling at your spouse or children. A good rule of thumb is: talk to your spouse and kids the way you would talk to a judge. When you’re trying to win child custody, assume that anything you say will make its way back to the judge, and conduct yourself accordingly.
If you feel your temper rising, it may be a good idea to leave the room and walk it off, and resume discussion when you’re feeling calmer. It’s important to remember that the judge only has the opportunity to view a narrow portion of your life when determining whether custody with you is right for your children. Even one yelling match can paint the picture of someone who doesn’t have their temper under control.

Badmouthing Your Ex (To Anyone)

When you’re facing the dissolution of a marriage and fighting for the right to see your kids, it can be tempting to badmouth your ex to friends or family. This is unwise. Assume that anything you say about your spouse will be heard by the judge. Even if your friend promises to keep what you say in confidence, they may be subpoenaed and have no choice but to reveal what you said to them. Children thrive best in a two-parent household, so it’s important to show the judge that you’re willing to put aside hurt feelings and co parent in a respectful way. Badmouthing your ex can cast doubt on your ability and willingness to do this.

Venting To Your Children

It’s especially important to avoid badmouthing your ex to your children. Children love both parents dearly, and if you badmouth their other parent, they often feel pushed to choose one parent over the other. This can be painful and uncomfortable for them.

It’s important to make this troubling time as easy and stress-free as possible for your children. That includes not putting the weight of your divorce, and your anger or hurt towards your ex, on their shoulders. Additionally, children are often called to give testimony as part of the court proceedings; so anything you say to your kids will likely make it back to the judge.

Rescheduling On Children Or Showing Up Late

If you have a temporary custody arrangement in place (for instance, you have weekend visitation rights with your kids), then it’s important to maximize those parental rights. Spend as much time as possible with your children; this shows the judge that you genuinely prioritize them and are in this custody battle for the right reasons.

For this reason, you shouldn’t reschedule time with your children or show up late when it’s your turn to have them. That can tell the judge that they’re not a priority in your life.

When you do have your kids, it’s also important to do mundane things with them like homework and chores, not just take them to Water World every time. This shows the judge that you’re genuinely interested in the harder and less glamorous aspects of parenting.

Refusing to Follow the Court’s Requests

If the court has asked you to pay child support or alimony, then it’s very important that you follow through with those payments. Refusing to pay could lead to the judge declaring you in contempt of court. This will not help you in your child custody battle. Additionally, prioritizing child support payments tells the judge that you take your parental obligations seriously and will prioritize your children.

Misusing Drugs Or Alcohol

It’s important not to misuse drugs or alcohol during your custody battle; this misuse can paint a negative picture for the judge. Additionally, never use drugs or alcohol when your children are around.

Introducing Your Kids To Your New Significant Other

The divorce process and custody battle are a stressful time for children, as the peaceful home that they knew can rupture down the middle. In this turbulent period, it’s best to avoid adding to that turbulence by introducing your child to a new significant other. They may feel torn between your ex-spouse and your new partner or feel that you’re trying to replace their other parent.

It may be a good idea to introduce your child to your new partner eventually, but that introduction should be delayed until things settle down and the child custody battle is over.

Removing Your Child from Regular Activities

As mentioned, a custody battle can be a very uncertain time for children. In this period, their regular activities such as extracurricular can provide a source of stability and continuity. Children need a certain amount of stability to thrive, and judges may frown on parents who undermine this stability too much.

Removing Your Child From School/Daycare Without Notifying The Other Parent

If you’re not the primary custodian of your child, removing them from school or daycare without the other parent’s consent is a huge misstep. It can demonstrate an unwillingness to do the communication that co-parenting requires. It can even be seen as kidnapping, if you take your child to another state (for example, for a family reunion) without notifying the primary custodian.

To be extremely safe, we recommend that you notify your ex-spouse in writing of any plans to remove your child from school or daycare, and submit that notice 2 weeks before the planned removal.

Preventing Contact between Your Children And Your Ex

It’s very important not to prevent contact between your children and your ex. This means that when you have a drop-off point, drop your children off on time. It also means that if your ex calls your child when the child is with you, you should give them time to talk on the phone. And of course, if your child wants to call your ex while the child is with you, you should let them.

Trying to prevent contact between your children and your ex can be interpreted as alienation of affection, which the courts take very seriously. Children thrive when they have two loving parents who communicate well, and all of your actions should be designed to facilitate rather than hamstring this relationship.

How to Prove an Unfit Parent

The laws are relatively clear on what makes a parent unfit — but how do you go about showing a lack of parental fitness to the courts? To begin with, do you have evidence of any of the following?

Sexual abuse or sexual exploitation of the child?

Injury to or death of the child’s sibling, or of any child, caused by the unfit parent’s abuse or neglect? (Injury or death not caused by abuse or neglect, such as a child accidentally breaking their arm in a sports accident, is not sufficient.)

That the parent was convicted of a crime that demonstrates inability to care for a child?
Any incident that disabled or disfigured the child, or put their life in jeopardy?
That the parent ever committed, solicited, or tried to commit the murder of a child?
If not, you may be able to have your spouse’s parental rights terminated on other grounds under Section 78A-6-507. For example:

Did the parent ever abandon the child?

Has the child been placed into care outside the home? If so, has the parent taken any steps to correct the situation? If not, is it unlikely that the parent will provide proper care in the future? Note that all three of these conditions must be met. Has the parent failed to adjust to their role? This could mean making the bare minimum effort to protect, care for, or communicate with the child.
The bottom line is that the courts consider the child’s best interest when making determinations about child custody, child support, and visitation, and parental rights— period. The parents’ wishes and convenience come second to preserving the child’s safety and overall quality of life.

Don’t Go It Alone

This is probably a stressful time for you, and you’ve got a lot to think about. Emotions may be running high, and you may benefit from a 3rd party who’s on your side and can help you make wise decisions. This is also one of the most important battles of your life because it can impact how often you see your children over the next several years. Don’t try to go it alone. Instead, we strongly recommend that you reach out to an experienced child custody attorney.

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!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506


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