If the Wife Filed for Divorce, Who Will Get Custody of the Kids?

By Ciele Edwards

Of all the issues attached to divorce, none can be quite as emotionally draining as a child custody dispute. If the divorcing couple cannot reach a custody agreement on their own, the court steps in. The judge evaluates a variety of factors before determining the custody arrangement that meets the child's best interests. Child custody decisions are not made on the basis of which parent initially filed for divorce.

Of all the issues attached to divorce, none can be quite as emotionally draining as a child custody dispute. If the divorcing couple cannot reach a custody agreement on their own, the court steps in. The judge evaluates a variety of factors before determining the custody arrangement that meets the child's best interests. Child custody decisions are not made on the basis of which parent initially filed for divorce.

Best Interests Standard

Although each state has its own specific set of criteria judges must examine during a custody dispute, the “best interests standard” agreed upon by the National Conference of Commissioners on Uniform State Laws applies in every state. The best interests standard requires that a court take the following into consideration before awarding custody to either parent: each parent's wishes, the child's wishes, the child's relationship with each parent and with his siblings, the child's emotional attachment to his school, home and community, and the mental health of all parties involved.

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Additional Factors

The additional factors a court examines beyond the basic best interests standard vary by state. Pennsylvania, for example, places children with the parent most likely to provide a stable and conflict-free home. Because judges want to see children maintain a relationship with both parents – even if those parents cannot maintain a civil relationship with one another – a judge is more likely to award permanent custody to the parent she feels is most likely to foster a positive relationship between the child and the noncustodial parent.

Negative Influence

Which parent files for the divorce has no bearing on the court's custody decision. The reason behind the filing, however, may pose a threat to the child and subsequently influence a judge's ruling. If, for example, the wife filed for divorce because her husband was physically abusive or a drug addict, the judge will take these factors into consideration, because they pose a potential threat to the child.

Gender Neutral Laws

Mothers do not win custody automatically. To avoid discriminating against either parent, most states have adopted “gender neutral” statutes. A gender neutral statute requires that the judge examine only the required facts and not take a parent's gender into consideration when determining child custody.

Change in Custody

Although many courts are reluctant to remove a child from a home unless that home is unstable, the parent that loses the custody battle can file a petition to change the custody arrangements at a later date provided he has just cause to do so. For example, he can petition for a change in custody if he fears the child is suffering from abuse. The noncustodial parent also has the legal right to immediately appeal the judge's custody decision and take the case to a higher court. If the noncustodial parent opts to immediately appeal the ruling, she must do so within the time limit for custody appeals in her state.

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Tips for Winning a Child Custody Battle

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Child Rights in Divorce Visitations in Tennessee

In contentious custody battles, both parents frequently claim to represent the best interests of the child; however, all too often, it is the children who suffer most, as parents often only represent their own interests. In Tennessee, as in all states, children have a legal right to competent caregivers who do not abuse or neglect them. Additionally, there are several laws and standards designed to protect the needs of children whose parents are divorcing. However, Tennessee recognizes that children may not always be able to make decisions that are in their own best interests, so there are no laws guaranteeing children any specific rights to determine their visitation schedules, but there are several avenues children can use to advocate for themselves.

What Is a "Change in Circumstances" in a Custody Case?

Whether the case is concerning an original custody order or a custody modification, courts in every state are primarily concerned with what is in the best interests of the child. Even where the circumstances of a case have significantly changed, a court will only modify a custody order if it is in the best interests of the child. However, state law governs child custody issues and the particular factors up for consideration, time frame and process for requesting custody will vary by state.

Why Are Mothers Granted Custody in Most Divorces?

Custody laws are in place to further the best interests of a child after divorce. Although these matters are no longer decided on the basis of a parent's gender alone, a mother still often receives sole custody. This is generally based on a deference afforded to the parent that is most involved in the child's day-to-day upbringing.

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