Child custody is probably one of the most contested issues in Family Law. The emotional nature of the issue is why Family Courts are often called the Court of Heartbreak. Custody of children is determined by the best interest of the child standard. The court assumes that it is in the best interest of the child to maintain contact with both parents.

In determining what is in the best interest of the child the court will consider the following factors:

  • Primary caretaker of the child: This factor considers that continuity of care is important to the child’s well-being. It is especially important if the children are young. It can be overcome by proof of mental illness, drug, or alcohol abuse, or physical or mental abuse of the child.
  • Child’s preferences: The weight the court gives this factor depends upon the age, maturity and the quality of the child’s reasons. Some courts do not consider the wishes of a child younger than age seven. Generally the older the child the more weight the court gives their preference. Testimony of a child is usually given in the Judge’s chambers rather than open court without the presence of the parents.
  • Non-Marital Sexual Relationships: This is not a factor in all states. Generally, a non-marital sexual relationship has a bearing on custody only if it has a direct relationship on the child’s well-being. The court will look at whether the relationship has caused the child stress or emotional trauma. For instance, a live-in relationship after the end of the marriage would not be enough to change custody arrangements.
  • Undermining the Child’s Relationship with the other parent: Courts believe that it is in the best interest of the child to have a healthy relationship with both parents. This can be a negative factor against the parent doing the undermining and can cause the court to give custody to the parent more likely to promote a healthy relationship with the non-custodial parent.
  • Homosexual Relationships: The impact of these relationships vary from state-to-state. Some states treat heterosexual and homosexual relationships equally—in other states it can be a detriment to custody.

In sole custody arrangements, one parent takes care of the child most of the time and makes major decisions about the child regarding, schooling, religion and where the child lives. In joint custody arrangements both parents share in making major decisions and spend substantial time with the child.


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