Child Custody: Criteria for a Custodial Parent

By Heather Frances J.D.

During the divorce process, state courts may determine how to divide child custody between the divorcing parents, if the parents cannot come to their own arrangement. Each state sets its own rules for how custody can be divided, including the criteria each court will use to establish a custody arrangement. Generally, parents can agree to their own custody arrangement, but the court will rely on state guidelines, if the parents cannot agree.

During the divorce process, state courts may determine how to divide child custody between the divorcing parents, if the parents cannot come to their own arrangement. Each state sets its own rules for how custody can be divided, including the criteria each court will use to establish a custody arrangement. Generally, parents can agree to their own custody arrangement, but the court will rely on state guidelines, if the parents cannot agree.

Best Interests of the Child

Typically, state laws craft child custody guidelines that focus on the best interests of the child involved. To uncover the child's best interests, state laws may establish a set of factors a court must or may consider when addressing custody arrangements. Even without such factors, a court's primary concern is designing an arrangement that is in the best interest of the child, regardless of the convenience to the child's parents. For example, if a child has been abused by a parent, the court is unlikely to give significant custody rights to that parent, even if he says he wants custody. But if a child is close to both of his parents, the court might try to split custody as evenly as possible to preserve the child's relationship with each parent.

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Consistency for the Child

Many custody factors focus on providing a consistent living environment for the child. Michigan courts, for example, consider the length of time the child has lived in a stable and positive environment along with that child's need for continuity and the permanence of each parent's home. Minnesota courts consider the child's adjustment to his home and community and whether each parent's existing home contains a permanent family unit. This does not mean that a parent who lacks continuity cannot be awarded custody, but it is a significant consideration for most courts. A parent who can provide a stable home in the child's community may stand a higher chance of being awarded greater custodial rights.

Other Factors

Courts can also use other factors to determine what custody arrangement is in the child's best interests. For example, courts might consider a child's preference if the child is old enough, or courts can consider the mental and physical health of each parent. None of these factors independently decides the custody arrangement for a divorcing family; judges consider the whole range of circumstances before reaching a decision. In fact, state laws generally have a catch-all factor that allows courts to consider any factor that is relevant to the child's situation. Thus, even in unusual circumstances, the court can craft an arrangement that is in the child's best interests.

Custody Determination Process

When parents cannot agree on a custody arrangement, the court must decide for them, using the criteria in state law. This determination happens during the divorce case, though it may require additional hearings to resolve. At these hearings, the court can receive evidence from each parent, including testimony from third parties like daycare workers, teachers, relatives or doctors. These witnesses can describe the parents' interactions with their child, helping the court address each of the factors necessary to determine the child's best interests.

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How to Determine Who Will Win Child Custody

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Child Custody & Adoption

Legal adoption occurs when both biological parents give up their parental rights to a non-biological parent or parents. The court then awards the adoptive parents full legal custodial rights over the child. Custody rights over a child can be either legal custody, physical custody or both. These rights may be held by biological parents, third parties or a state welfare agency. Obtaining custody over a child may be the first step toward adopting the child, particularly in the context of a state child-welfare agency and the foster care system.

Child Custody Alternatives

When parents divorce, the court usually must issue an order dividing custody and crafting a visitation schedule that is in the best interests of the divorcing couple's children. While only courts can issue these orders, parents can create their own custody and visitation agreements, through mediation or by themselves, and ask for court approval. If parents cannot agree, the court creates a custody and visitation structure based on state guidelines and the facts of the case.

How Old of an Infant for the Father to Have Custody Rights?

There is no set age at which a father suddenly has custody rights to his infant, though age can be considered in custody discussions. Though state custody laws and procedures vary, they are designed to allow courts to have flexibility when making custody determinations so that custody arrangements can fit the unique circumstances of each family. Thus, the level of custody a father receives depends on many factors, including the child’s age and circumstances.

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