How Is Child Custody Decided In Divorce?

By Beverly Bird

Every state defers to a concept called the “best interests of the child” when deciding custody issues. But different states interpret this guideline in different ways. As a parent, you might do your best for your child every day, only to find that a judge disagrees with your assessment. In the end, it comes down to the opinion of that judge and what he and his state believe to be the most important factors in a child’s life. But some standard tenets apply.

Every state defers to a concept called the “best interests of the child” when deciding custody issues. But different states interpret this guideline in different ways. As a parent, you might do your best for your child every day, only to find that a judge disagrees with your assessment. In the end, it comes down to the opinion of that judge and what he and his state believe to be the most important factors in a child’s life. But some standard tenets apply.

The Child’s Preference

According to the Child Welfare Information Gateway, 11 states have specific language in their statutes directing judges to consider how the child feels in a custody dispute. Most other states allow a judge to at least weigh the child’s wishes. The preferences of a teenager can have a strong impact on a custody decision, such as if a boy does not want to lose daily contact with his father because his parents are divorcing. Generally, the younger the child, the less importance a judge might assign to his wishes. No matter what his age, the child cannot unilaterally make the decision regarding custody; a judge would include this factor among others.

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Primary Caregiver

Especially with younger children, some states are reluctant to break the bond between a child and the parent who has consistently provided most of his care. Although most states have abolished the “tender years doctrine” which dictates that a young child is always better off with his mother, in many cases a wife has an edge in this area anyway. If she has historically been the one to oversee homework, bathe the child and tuck him into bed each night and take him to doctor appointments, courts will factor this into a custody decision.

Community Factors

If one parent is keeping the marital home in the divorce, this might affect a judge’s custody decision. Courts are generally reluctant to uproot a child's life without very good cause. If your child has grown up in the marital home and has ties to friends in the neighborhood, as well as school and extracurricular activities located there, a judge will give this weight. The impact is much less if the parent who moves out remains nearby, in the same neighborhood.

Interference With Visitation

Almost universally, courts frown on a parent who attempts to sabotage or interfere with her child’s relationship with his other parent. States generally believe that a child needs regular contact with both parents, and most of their statutes contain language indicating that a parent who tries to facilitate her child’s relationship with the other is favored in custody disputes. If there’s a history of interference with visitation, a judge will consider this.

Parental Lifestyle

Many parents believe that their personal habits and lifestyle choices have a far greater effect on custody decisions than they really do. Generally, only truly egregious behavior is cause for denying custody, such as an established pattern of alcoholism, drug use or negligence that would put the child at risk. However, a judge might consider lifestyle factors if one parent typically works excessive hours and is rarely at home. This would mean his child is likely to spend excessive time with an alternate caregiver rather than with his other parent. A conviction for child abuse would also rule out a parent for custody, even if the abuse didn’t involve the child who is the subject of the current custody dispute.

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A Tennessee Divorce: Can an Abusive Husband Get Custody of the Children?

References

Related articles

Tenessee Custody Laws

Because child custody disputes often become contentious and emotionally charged, Tennessee has established specific laws governing the adjudication of these disputes. Judges treat each family as an individual unit and attempt to discern the best custody arrangement for each child. However, these arrangements are governed by state law and cannot be based on a judge's whims or prejudices.

Child Custody Rights for 12 Years & Older

Establishing child custody can be a highly contentious aspect of divorce. Although each parent may feel entitled to a certain amount of contact and authority over a child, custody decisions are made according to what is best for the child. In cases where the child is of sufficient age to understand the nature of the proceedings, his or her participation and preference might be considered by the court. Understanding how state law impacts the custody rights of your pre-teen or teenage child will help you better prepare for the custody process.

Reasons to Deny Custody

Divorcing parents can't deny each other custody, but courts can do so. Judges typically do their best to preserve the relationship between a child and both parents, but this doesn't work in all circumstances. Courts rarely order joint custody when parents can't get along well enough to make it work. As a result, one parent ends up with custody and, barring egregious circumstances, the other gets visitation.

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