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Child Custody Laws

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Rule: Children Come First in Child Custody Laws

The basic assumption of child custody law is that the interests of the child should take priority over the interests of either parent. It also assumes that the child’s interests will be best protected when the child has a good relationship with both parents, even if the parents are separated.

Child custody is the right to make major decisions concerning the child. Such decisions include non-emergency medical care, religion, and consent to join the military, among many others. Essentially, any decision that a parent has the power to make for a child rests with the parent or parents who have custody.

Child Custody Factors

Courts can consider almost any factor which is relevant to a parent’s fitness to raise a child, and this list simply includes some of the most common considerations. Courts are free to consider any other factors that may be relevant.

In a divorce proceeding, divorce courts have wide discretion in deciding who gets custody of a child. There are many factors which they usually consider. These factors include:

  • The wishes of the child’s parents: if both parents agree to a custody scheme, courts will usually follow that decision.
  • The wishes of the child: if the parents cannot agree, the wishes of the child will be given strong weight.
  • Which parent has been a primary caretaker during the marriage.
  • The child’s adjustment to their current home, school, and community.
  • The parents mental and physical health.
  • The child’s preference if the child is above the age of 12.

After the courts look at all the relevant factors, most courts then tend to focus on which parent will provide the best and stable environment for the child and which parent has the better relationship with the child. Usually the parent that has been the primary caretaker has been awarded custody. In regards to older children, courts award the parent that provides the best education, neighborhood, life, and religious surrounding for the child.

Factors That Courts Cannot Use

Although judges are allowed to use a variety of factors while assessing child custody, there are some factors that judges may not use when determining child custody:

  • Gender – In the past courts have been awarding child custody to the mother since the mother was usually the primary caretaker for the child. Today, courts have rejected this rule and have focused on all the factors listed above instead.
  • Religion – Generally, courts are not allowed to use religion as a reason to deny child custody. The exception is if the child in question is harmed by specific practices or harmed by specific neglect.
  • Race – Courts cannot deny child custody because one parent is a certain race or if one parent is dating a person of a different race. Racial diversity is generally not a factor unless there is specific evidence that racial diversity would be beneficial for the child.
  • Disability – The mere fact a parent is disabled does not prevent the parent from having child custody. What is determinative of child custody is whether the disability prevents the parent from supporting the child if the parent had custody.

Are Courts More Likely to Award Child Custody to the Mother?

In the past courts have been awarding child custody to the mother since the mother was usually the primary caretaker for the child. Modernly, the courts have rejected this rule and have focused on all the factors listed above. States are now required to determine child custody on the basis of the child’s best interest and a consideration of which parent will provide the child with the best stable environment.

Common Child Custody Issues

Common child custody issues include:

Do I Need a Lawyer for Child Custody Proceedings?

If you feel that your situation warrants examination by the courts and cannot be resolved through family mediation, we suggesting that you consider posting your case on LegalMatch for review by child custody lawyers in your local area.

Photo of page author Jason Cheung

, LegalMatch Legal Writer

Last Modified: 03-07-2018 05:45 PM PST

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