When a couple with a child or children divorces or separates, the issue of custody can be an emotional and contentious one. In some cases, the parties come to an amicable agreement on custody. In others however, custody disagreements lead to court hearings and can lead to resentment and harsh feelings.
Because divorce or separation can be emotionally charged, parents sometimes seek to use child custody as a tool against the other parent. Courts have established vigorous guidelines to determine child custody arrangements. These guidelines generally do not include the parents’ preferences.
In fact, once the issue of visitation ends up in a courtroom, the wishes of the parental parties take a back seat to the options the judge needs to weigh in the interest of the child or children.
What Is Considered to Be the “Best Interest” Standard?
Generally, each state has its own guidelines for child custody. However, one of the most common factors in child custody is what kind of visitation schedule is in the best interest of the child.
But, what is the best interest of the child standard, and how do courts apply it?
There is no one answer when it comes to a standard set as the “best interest” of the custody arrangement for a child or children. Judges will analyze arguments presented by each side and weigh those along with any laws or formulas put in place by state legislatures. Ultimately, the court will place the best interest ahead of any agenda for the parents.
What Are Some of the Factors That Courts Look at to Determine the Best Interest of the Child or Children?
Generally speaking, each state has its own set of guidelines when it comes to determining what “best interests” are. However there are a few custody issues.
One of the first and broad considerations is the overall background of the child or children. This includes the gender, age and overall health. If there is a child with special needs, other things may typically be taken into consideration such as whether the child is used to a certain living situation or care situation provided by one of the parents.
Generally, if the child or children are between the ages of 12 and 14, the court may weigh the preference of the child or children along with other presiding factors.
The quality of schooling available and safety of neighborhood historically have been given context in custody decisions. Traditionally, courts are reluctant to change established environmental patterns without a serious, compelling reason.
Stability can be key. Does one parent travel frequently for work while the other parent does not? If this is the case, historically speaking, the parent who travels less is deemed to provide a more stable environment.
Accompanying stability is the ability to financially provide for the child or children. While the lower earning parent is not legally prevented from having custody, courts typically prefer a parent who has the ability to maintain a longer-term home for the child or children.
Health is also a valuable factor. Courts have tended to prefer a parent who is in better physical and mental health condition.
Other family and familial relationships can also be important. Courts want an environment where relationships with siblings, grandparents and other family members are enriched. Along with those relationships, courts generally are honed-in on parents promoting good relationships with those family members and, most importantly, the other parent.
Can Visitation Rulings Be Changed?
Most often courts are reluctant to change a custody order once it has been established. However, if there is a major change in circumstances such as a job or career change that affects the primary custodial parent’s ability to spend time with the child or children, then a court may change the existing, established custody order.
For instance, if a mother has primary custody, but her new job requires her to travel extensively, the father may now be awarded primary custodianship by a court even over the objections of the mother.
What If Grandparents Want Visitation Rights Even Over the Objections of the Mother?
As in many other questions, generally speaking this depends upon the state in which one lives. Approximately half of the states stick with the “best interest” standard typically. The other half have entered the grandparents rights age.
This means that the court may choose to invoke the rights of grandparents to know their grandchild or grandchild, even over the objections of the main custodial parent. In general, courts with this approach will carve out visitation time for the grandparents unless the custodial parent can prove potential harm such as abuse to the child or children.
Do I Need an Attorney for Help With Custody Matters?
Custody cases are very stressful and can be very detailed. No matter if you are going through negotiations with the other parent or using the court system having an experienced child visitation attorney can help guide you through the process and establish a visitation schedule for you and your child’s or children’s best interests.