Deciding Who Gets Custody of Children
in a Divorce
Reprinted from Lawyers.com
All state courts decide custody based on the best interests of the children. Judges are supposed to make decisions based on this alone, but it is not that simple. Different states define a child's best interests in different ways, and not all of them list exact criteria in their family law codes.
Judges Do Not Like to Force Change on Children
The best interests standards in most states protect children from being plucked out of one home and forced to move into another just because their parents are divorcing. If parents live separately for a while before filing for divorce, the parent the children have been living with usually has an edge, especially when that parent stays in the family home. When parents have not been living separately, the one who normally took care of the children during the marriage may be favored.
Judges Want Parents to Put Their Children First
Courts want divorcing parents to look past their hard feelings for each other and make sure their children have time with both of them. Courts frown on interference with visitation.
Children's Preferences Count
Judges in some states will consider a child's wishes when deciding custody. They will not automatically place the child with the preferred parent but will include a child's wishes in their decisions. This is particularly true when the children are teenagers.
Judges Consider Domestic Violence
If either parent has a history of domestic violence, judges must consider this as well in some states. However, if one parent falsely accuses the other of violence, this false accusation can work against the parent who makes it.
Some Issues Don't Affect Custody
Spouses often believe that the other parent's bad behavior should influence a judge's custody decision. Although some state courts weigh issues such as a parent's moral character, judges generally may not consider these things unless the parent's behavior has a direct effect on the child. For example, a parent might have had an affair but, if the children were not aware of it, the judge probably will not consider it in a custody decision. A parent with a history of drinking and driving, on the other hand, might be denied custody because habits like this put the children at risk.
A Family Law Lawyer Can Help
The law surrounding child custody is complicated. Plus, the facts of each case are unique. This article provides a brief, general introduction to the topic. For more detailed, specific information, please contact a family law lawyer.
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Lawyers.com legal editors have reviewed and verified that the content included in this article reflects accurate and up to date legal information.
Concerned Father
34 minutes ago
I am scared, what else can I say. I am scared to death over my daughter. I love my daughter to death and do not want to see her turn out like her mother did. Its complicated as every case is Im sure. My daughters mother cheated on me and I did everything possible to prevent it. I found out and she wants me to stay. I filed for full custody of my daughter and I have a mediation date in september. I have gone through hell and back and all I have been doing is taking care of my daughter. Her mother has used the daughter against me in plenty of ways. She has also has a 6 year old son that her parents take care of. He doesn't even live with her. I have documentation of her parents trying to take custody away from her, even tho the paperwork is was not filed. Her mother gave me the papers to look at I happened to have them in the after math. My ex had a DUI which occurred after me leaving a bar and her staying and drinking with other men. She then came to my house and tried taking the baby and so I called the police and she got a dui trying to get away. Also her family threaten me and threaten to take full custody away from me. I dont want to live like this and my daughter live like this anymore. I need my daughter to be raised properly and I need full custody of her. I was informed of About the Children advocacy group that prepares the documents for me. I dont know if I can afford a lawyer and so is that a good option for me. I am heartbroken and devastated and wish I never put my self in this life with her.
A real dad
2 hours ago
Wow, what a load of garbage. A child's best interests are rarely if ever taken into account by the divorce industry, headed by "family" court judges. The divorce industry is vaginal advocacy lining the pockets of "family" experts such as attorneys, judges, and social workers who financially benefit from the conflict they supposedly want to avoid.
And as for this claim? "...if one parent falsely accuses the other of violence, this false accusation can work against the parent who makes it." LOL Can? Yes, I suppose it could... in Utopia. But it doesn't in reality, at least not if the one falsely accusing is female. Restraining orders are given out like candy, WITHOUT probable cause. In maybe 5% are such orders actually defensive measures as intended. The other 95% of the time they're used (mostly by women) as offensive weapons in custody battles.
Lawyers are immoral scum. Divorce lawyers are lower than that.
Remember, 99% of attorneys give the rest a bad name.
P
4 days ago
This article is by lawyers and is an advertisement for lawyers ! Its highly inflammatory. What about joint custody ? They want mom and dad to fight. Lawyers,CPA's,social workers are whores in a whorehouse.
Yes there are extreme situations, but most are about "abusive men" who are convicted of being abusive because they MAY have let a swear word out of their mouth.
Yeshua El Messia
4 days ago
Divorce comes from none submission to Yahweh because marriage is ordain by Yahweh and because people do not turn to Yeshua satan takes over, believe it or not.
Turn to Yeshua for the love, peace, wisdom, strength, protection & the salvation that only comes from Him both spiritually & physically, amen.
Reply 0
Jesse
5 days ago
You forgot the most important factor.
If you have a penis then you do not get custody unless your wife is a proven drug addict.
As I once heard a judge say, "I never saw a calf follow the bull" so the wife gets the kids.
Myself
7 days ago
.
You left out the most important factor:
Judges Want to Be Re-Elected
Judges know that if they grant custody to fathers more than a small percentage of the time, the power of the Women's Movement will get them put out of office at the next election.
Politics overrides everything else in our society.
.
ACW
7 days ago
I have to say this article is on course with my experience. In spite of a bitter divorce and custody fight, I won custody of my 11 month old daughter. Although, it was very difficult.
In 2001 just past our one-year anniversary my former wife told me, "Happy Father's Day. I'm pregnant and I want a divorce. " Not a good day.
The first thing I did was hunt down the absolute best attorney I could find. I went to three attorney's and asked them all who they would hire. Two of them mentioned the same name. That attorney told me my chances of getting custody were slim and did everything she could to try to talk me out of trying. I knew I would be the better parent, but I was advised my wife would need to do something highly dramatic such as go into drug rehab, crash he car drunk, or dance naked on a count commissioner's desk in order for me to win.
I was also told not to move out of the house and to establish myself as the primary caregiver. As this article indicates, these are the two PRIMARY factors. If a man does not live with and take care of the child the chances are nill. I followed these instructions.
Although we did not have the high drama, there were enough things my ex-wife did wrong which I clearly documented and presented in court along side of all the documentation showing how I spent more time with the baby, more walks, baths, bottles, etc. than the mother.
The final thing needed was a pragmatic judge. I know not all judges would have gone my way. But I was blessed with one who saw my ex-wife for what she was and saw in me a better alternative for our baby. He told my wife, "You put yourself ahead of your baby." This is a critically important factor.
My daughter is 11 now and is happy. She sees her mom every other weekend. Her mom is still a little shaky, but my new wife of 6 years and I provide a very stable home.
It is never a guarantee one way or another. You are your lawyer have to be a team. Get the best lawyer you can afford. Do everything you are supposed to do. And pray for the right judge.
John
7 days ago
The last is important. A Judge has more power over you, than a Cuban Commissar.
Jim
4 days ago
Nicely stated...
Crystal Drolsum
7 days ago
I guess I should add my current boyfriend does have a record but has followed the system for 13 yrs now without getting in any more trouble . I also have domestic disppute / harassment charge but just had to pay the fine. Unfortunately with mine i was defending myself but the judge didn't care. I am worried this will also affect, if i do have to go to court , the judges choice about my bf and I having full custody. Thought I should add that :-\
natalie davis
7 days ago
Since you are not married, he has no legal entitlement to the child. If his name is not on the birth certificate, he will have to file for paternity in court. If you are on state aid, the state will go after him and prove paternity. Since you are still pregnant and no court order is in place, you are allowed to move anywhere of your choosing.
Crystal Drolsum
7 days ago
After I found out I was pregnant the biological father left and left me with NOTHING! No money or food . He denied the baby was his and I asked him to have the DNA testing done so I could prove it was his but he refused. I started dating my best friend not long after the biological father left and he,my current boyfriend, has been taking care of the baby and I for the last 13 weeks...I'm 19 weeks pregnant. Now, the biological father wants me to get back into a relationship with him and if I don't wants to take me to court for him to have full custody. My new boyfriend and I would like to move but aren't sure if I'm allowed to leave the state now or even after our daughter is born. I don't want to loose my daughter and want to move to a new state to start over . We are currently living in PA. I'm desperate to keep my daughter! Please if you have any information message me.
Jackie Nichols
7 days ago
I am not a lawyer, but it is my understanding that since you are not married to him, you can move anywhere you want until paternity is established and a custody order is in place, which cannot happen until after the birth. If I were you, I would move before the baby is born and I would not tell him where I was going. However, I would advise you consult with a family law attorney before doing anything.
Jerry Pull
8 days ago
do not agree with judges on custody battles, my ex got custody because I was military, she ran off with the town walfare leach and hid out at her fathers house who has known for arson on any body who crosses him, there was a raid on the house with thousand of dollars of stolen merchandise as shown to me by the police but when I tried to sumit it to the courts all evidence disappeared, son went through hell his whole life after that, I depleted evry penny I had to get custody but judge ordered me to pay her court expense also. I ran out of hope for the court and when I was able to get funds to visit, I tried to guide him in the right direction. But every time I did she would buy him something and told him not to pay attention to me, when He turned 18 and the support stopped her boyfriend advised her to toss him out. Then after a few months her boyfriend left for someone else who was drawing child support. After several years my son called me and told me I was right about what she was doing and asked for my advise in which he took and now has graduated with honors from ITT in robotics and working on his BA in engineering. this is a prime result of the courts failing our children and allowing them to grow up on the streets, I've since remarried and have 2 more sons who have been excelling in every aspect of education with my guidance and listed as honor student since they started school. AS for the court system that failed my first son it was the state of Kentucky in which I'll never live there again due to the corruption of the courts,
While I was attending school I was warned of a kangaroo court system and got first hand experience. Aas for my first son he still say he had no father while he grew up. I'm just proud he got away from his mother influence and leading his own life in a more positive outlook on life. Hopefully everyone else may get shafted form the court but look out for the children in their own way.
BayouKiki
7 days ago
One of the many lessons others can learn from your experience is to be careful whom they choose to be the mother of their baby. I'm guessing your first wife had plenty of problems that were fairly obvious (such as an arsonist for a father). I'm very happy that your son was able to thrive despite all of that. I'm guessing that will make him very choosy when selecting a mother for his children and will make him an awesome dad
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