Components of Custody
In most states, custody decisions address two aspects custody, the physical side and the legal side. Physical custody refers to where the child sleeps overnight, according to a set schedule, known as a parenting plan. Legal custody refers to the authority of a parent to make major decisions regarding the child, such as religious affiliation and school choice. Both types of custody can be shared or ordered solely to one parent, and are collectively known as your parental rights and responsibilities.
Best Interests Standard
Judges must promote the best interests of the child in making all custody determinations. Although the specific factors a court may consider can vary from state to state, the health, safety and welfare of the child are paramount. The relationship each parent has with the child and with each other is of great importance in ensuring that conflict after a divorce will be minimized. Determining how these factors are affected in a particular case can require more time and expertise than courts are equipped to handle. For that reason, a judge may order a custody evaluation. The custody evaluation is conducted by a neutral professional, typically a psychologist, with specialized training in child and family-related matters.
Custody evaluations generally involve one-on-one interviews with the parents and child, observations of the children with each parent, and interviews with professionals that have worked with the child, such as teachers. The evaluator may also collect and review relevant documents, including parental criminal records and child medical and school records. The evaluation can vary in both size and scope, depending on the issues to be decided in court and any specific instructions from the judge. For example, more in-depth interviews and document requests may be necessary to evaluate the child's best interests, if a parent has a history of domestic violence or sexual abuse. Once the evaluation is complete, the evaluator then submits a written report to the judge. The report includes a recommendation as to a custody arrangement, as well as the basis for arriving at the opinion.
Effect of Report
At the custody hearing, the judge may use the evaluator's report as evidence. However, a judge is not bound by the opinion, and may disregard portions of the report and its recommendations, particularly if a parent provides convincing evidence contrary to the report's findings. This might be in the form of witness testimony or documents, such as a certificate showing completion of an anger management course since the date of the evaluation. In addition, state law may require a judge to rule contrary to the evaluator's opinion. For example, some states require that steps, such as rehabilitation or counseling, be taken before a parent with a history of abuse can be awarded custody. In other states, a parent convicted of first-degree murder of the other parent cannot be awarded any custody, regardless of evaluator's opinion, until the child is of suitable age and consents.