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.

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.

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.

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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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Divorce With Children & a Drug Addicted Spouse in Maryland
 

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How to Behave in Custody Battles

The end of a marriage is difficult, but the idea of losing custody of your children is terrifying. A judge's only concern in deciding custody is your child's best interest. Parent behavior during a custody battle can influence the judge as he decides which residential placement meets that criteria. Knowing a judge's criteria in terms of your behavior can better help you demonstrate that your child's best interest lies with you.

How to Determine Who Will Win Child Custody

Child custody laws vary from state to state. Likewise, different jurisdictions have different preferences and guidelines for how to divide custody between divorcing parents. That said, mothers and fathers both have equal rights to obtain custody of their children. Courts will generally not assume that the child will fare better with a particular parent based on that parent’s sex. Likewise, either parent can file a motion for custody, either during a divorce or after a court has entered a custody order.

Child Custody Laws for North Carolina

Custody includes both physical custody, the right to provide a home for a child, and legal custody, the right to make decisions regarding a child's day-to-day care. In North Carolina, parents have an equal right to custody regardless of gender. The state's custody laws set forth the procedure a court must use when issuing or modifying a custody order.

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