What Gives You the Upper Hand for Custody?

by Wayne Thomas
One party can use evidence of domestic violence to demonstrate an unsafe home environment to the court.

One party can use evidence of domestic violence to demonstrate an unsafe home environment to the court.

Kraig Scarbinsky/Digital Vision/Getty Images

Although each stage of a divorce can involve conflict, custody disputes have the potential to become the most emotional. However, in all states, the best interests of the child always take precedence over the wishes of the parents. Knowing the circumstances under which a judge may be more inclined to award you with greater parental rights will help you best prepare for your custody case.

Divorce is never easy, but we can help. Learn More

Custody Basics

While the terminology can vary from state to state, custody is typically divided into two components: physical and legal custody. Physical custody pertains to where the child stays overnight, while legal custody refers to the authority to make major decisions regarding the child's upbringing, including school choice and religious affiliation. A judge can order that the parents share either type of custody or award either or both types of custody solely to one parent.

Best Interests Standard

All custody decisions must promote the best interests of the child. This standard necessarily looks to which parent can not only meet the needs of the child, but also whether that parent can foster a positive and ongoing relationship with the other parent. For that reason, if you are cooperative but your spouse refuses to speak to you, the court may be less inclined to award him greater parenting rights. This is particularly true with regards to establishing legal custody, where the ability to work together to make decisions is an important consideration.

Additional Factors

Minimizing disruption in the child's life is an integral part of determining physical custody. For that reason, a judge may be persuaded to award you with more overnights if you live closer to the child's school and extracurricular activities. Further, some states will take into consideration the amount of involvement each parent has had in the child's life, as well as the child's personal preference if he is of suitable age.

Safety Concerns

A court must ensure that a child's needs are being met and that she has a safe home environment. To that end, evidence of past physical or sexual abuse by one parent can be a red flag to the court that it might not be in the child's best interest to stay overnight with that parent. In addition, if you can demonstrate that the other parent has a history of poor decision-making, such as would be the case with continuous drug addiction, the court may conclude that it should award you sole legal custody.