If you can't reach a custody agreement with your spouse, divorce means putting your family in the hands of a trial court judge. The court has no intimate knowledge of your family to guide a custody decision, so it must fall back on a statutory standard provided by law. This is called the "best interests of the child," and the different states have different lists of factors that a judge must consider in deciding just what the best interests of your child are.
Although best-interests factors can vary from state to state, those in many jurisdictions share common themes. For example, courts do not like to disrupt a child's life any more than is absolutely necessary simply because her parents are divorcing. Judges will normally consider which parent was the primary caregiver when the marriage was intact. If Mom always served in this capacity, making Dad the full-time caregiver can be confusing and upsetting, particularly for a younger child. Your child's connections to school, community and playmates matter a great deal as well. Minnesota's statutes specifically make reference to the family home, giving preference to the parent who is retaining it. If you are giving up your current home, judges can consider where a parent's new home will be located.
Courts are typically not permitted to hold a parent's disability against him when making a custody decision, but his physical and mental ability to care for his child can be a best-interests component if the lack would endanger the child. A judge will typically want to determine the physical, mental and emotional soundness of each parent in a dispute over custody. This can include looking to character references that speak to such things as morality and reputation. A parent whose background includes brushes with the law or a penchant for hard partying won't impress a judge.
Maintaining the Family Relationship
Many states include consideration of the long-term family relationship and give preference to the parent who is most likely to encourage an ongoing, healthy relationship for the children with their other parent. This might include that parent's extended family as well, such as grandparents or cousins if the child is particularly attached to them. A history of interference with visitation or the parent-child relationship typically won't win favor from a judge.
Your Child's Preference
Only Massachusetts will not consider your child's wishes when the court selects a custodial parent in a divorce. However, this doesn't mean your child's opinion rules in the other 49 states. As with the other best-interests factors, your child's feelings are weighed in conjunction with other issues the court must consider. The older and more mature your child is, the more likely it is that her opinion will matter to the court. Maryland allows children 16 or older to petition the court themselves for a change of custody post-divorce.
Most states' best-interests lists include 10 or more factors. Some, like Maryland and Michigan, mention "material opportunity," giving preference to the parent who can provide the better home and physical comfort for the child. Many states' codes include issues of domestic violence, not just between parents or within the family, but violence that has been inflicted on other individuals or children as well. A history of perpetrating abuse or violence often disqualifies a parent from receiving sole physical or joint custody, and might even require that visitation be supervised by a third party.