When parents cannot agree about custody, state law guides judges in the placement of children in disputed custody cases.
Custody and divorce laws are state specific. No lawyer can ever guarantee how a judge may apply custody law in any specific custody case.
All jurisdictions have statutes establishing the standards by which judges award custody in disputed cases, and all these statutes turn on the phrase the best interest of the child. Judges have a great deal of latitude interpreting what this phrase means in a given case. These words set the gold standard of care taken by courts to protect children. The protection of children means a judge assumes the role of all-knowing parent.
With this as a controlling assumption, state statutes provide for a number of considerations that are factors in custody law. While the wording of custody law statutes varies from jurisdiction to jurisdiction, these factors include, but are not limited to, the age of the children; the living situation of each parent; the willingness of each parent to support the other parent's relationship with the child; each parent's relationship with the child before the divorce; the continuity and stability of the child's living arrangements; sexual orientation of the custodial parent; evidence of abuse and neglect by a parent; and in some cases, the child's preference.
Some jurisdictions permit the courts to consider the wishes of the child; others keep the child out of the process.
When possible, many courts favor joint legal custody if the parents can cooperate with one another. Many divorcing parents work very hard towards achieving this goal. Joint custody is definitely not for everyone and can only come about as a result of rational decision-making by both former spouses.
In practice, divorced mothers often end up alone in the marital home and custody of the children. Many judges interpret custody law in the light of the Tender Years Doctrine, which favors mothers as the custodial parent of children in the tender years, and the Maternal Preference, which suggests that all things being equal children are better off with their mothers. Judges work from an assumption that whenever possible, the lives of children should be disrupted as little as possible, and the Tender Years Doctrine and Maternal Preference support this assumption. (Interestingly, the maternal preference is a complete reversal of nineteenth century practices when children of divorce were routinely awarded to the father, who was considered to be their owner.)
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THE DON’Ts – Good parenting through divorce has a dimension that is negatively defined. Good divorced parents do not speak badly or make accusations about the other parent in front of a child. They do not force a child to choose sides, or use a child as a messenger or go-between, or pump a child for information about the other parent, or argue or discuss child support issues in front of a child. In short, they do not use a child as a pawn to hurt the other parent.
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