How Courts Decide Custody
Suppose Jack and Suzie didn't learn the importance of making their own decisions about how they will rear their children. They've been unable to work out a plan and now they've taken their case to the judge.
It is difficult for a court to determine a child's preference. Psychologists tell us not to ask a child which parent she wants to live with, as this is putting too much pressure on a child who is already stressed out because her parents are getting a divorce. Usually preference is explored indirectly, by asking the child about her activities, favorite things to do with each parent, and similar questions.
Factors to Consider
The custody statutes of each state give the judge a set of factors to consider in deciding custody cases, including the following:
Determining who is the primary parent, meaning the parent who was more responsible for the day-to-day child care
The plan the parents want
Reasonable preference of the child, if the child is mature enough to express a preference
Relationship between the child, siblings, parents, or other significant person
Child's adjustment to home, community, and school
Permanence of the parents' respective living arrangements
Nature of the family ambience in each proposed home
Mental and physical health of the parents and children
Length of time the child has lived where she is now living and the importance of maintaining that continuity
Child's cultural background
Impact of abuse on the child, if domestic abuse has occurred
In addition, if parents are seeking joint legal or physical custody, the judge needs to know how well the parents can cooperate, what methods for resolving disputes they will use, and whether it would be harmful to the child if one parent had sole custody. This latter factor deals with whether a sole custodian would support and encourage the relationship of the child with the other parent.
Interviewing the Children
In a custody trial, each parent presents evidence on the factors the judge is to consider. The judge may request an interview with the children in the judge's office to get input from them. Some states even mandate that a judge interview the children. The parents are not present at the interview, but their lawyers may be present if they so request and the judge agrees. The lawyers may submit questions to the judge that they want the judge to ask the children. The judge makes a record of the meeting. It may be used to clear up a misunderstanding about what took place during the interview; however, the record will be made available only to the attorneys, not the parents.
Sometimes the judge makes decisions about children without ever seeing them if he is strongly influenced by the parenting arrangement that has been in place since the divorce began. If the children are doing well in school and reports from counselors are favorable, a judge will want to continue a custodial arrangement to ensure the children's continued success.
