When you and your significant other cannot decide on a child custody arrangement that best suits your needs a Judge will need to decide that question for you. There is a specific set of rules that a Judge needs to determine when making a child custody arrangement. This is often called the “12 Best Interest Factors”. These factors need to be considered by the Judge when deciding child custody and are considered in light of what is in the best interests of the minor children. When considering these factors, each one is important, but the Judge does not have to weigh each factor equally.
Factor (a). The love, affection, and other emotional ties existing between the parties involved and the child. Some questions a Judge may ask when considering this factor could be: Who is the child bonded with? Who does the child go to with a problem? How does each parent relate with the child? How much time does each parent spend with the child each day? How often does each parent make the child’s meals? How often does each parent bathe the child, put the child to bed, and read the child stories? Are the parents able to separate the child’s needs from their own? How affectionate is the child with each parent?
Factor (b). The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue educating and raising the child in the child’s religion or creed, if any. A Judge may consider some of the following questions: Who stays home from work if the child is sick? Who usually handles school and homework issues? Who usually handles sports and other activities? How does each parent discipline the child? How does each parent talk to the child? How often does each parent involve the child with grandparents, uncles, aunts, and others? Who takes the child to church or other religious events (if the family is religious)?
Factor (c). The capacity and disposition of the parties involved to provide the child with food, clothing, and medical care or other remedial care recognized under the laws of this state in place of medical care, and other material needs. Some questions that may be asked about this factor can inculde: Who buys clothes, toys, food, etc. for the child? Who attends to any special needs of the child? What is the earning capacity of each parent? Who has flexibility in their work hours? How stable is the job of each parent? Who can provide health insurance for the child? Who makes doctor’s appointment for the child and takes the child to the doctor? Who arranges for childcare? If one parent earns more than the other, can child support be used to make things more equal? If there is a child support order, is the parent paying support? If there is no order, are the parents providing for the child’s needs?
Factor (d). The length of time the child has lived in a stable, satisfactory environment, and the desirability of continuing it. Questions to consider when looking at this factor can be: Who provides a stable, secure, and safe home environment for the child? Who can provide more stability for the child? Has either parent moved recently and, if so, why? How has the child adjusted to the move?
Factor (e). The permanence, as a family unit, of the existing or proposed custodial home or homes. When considering this factor a Judge may look at: Who is in each parent’s family unit? Will the child live with siblings or half-siblings?
Factor (f). The moral fitness of the parties involved. This can be a convuluted question and a Judge may look at the following issues: Has either parent had an extra-marital affair the child knew about? Has there been physical or verbal abuse, alcohol or drug abuse, poor driving records, physical or sexual abuse of the child, criminal records, or other negative behaviors by either parent? How have these behaviors affected the child? Have these behaviors had a significant influence on that parent’s parenting skills?
Factor (g). The mental and physical health of the parties involved. A Judge will look at if either party has a physical or mental health problem that significantly interferes with their ability to care for the child?
Factor (h). The child’s home, school, and community record. A Judge may ask the following questions when considering this factor: How does each parent encourage and influence attendance at school? Who goes to school conferences and activities? Who will make sure the child sees and talks to their friends? Who supervises the child’s home responsibilities, like chores? Who helps the child with homework?
Factor (i). The reasonable preference of the child, if the judge considers the child to be old enough to express a preference. It is up to the judge to decide whether a child is old enough to state a preference. The judge will give more weight to this factor with children who are older or more mature. There is no age at which a child can decide where he or she wants to live. It is important to note that if your child is asked for their preference, it is kept confidential and will not be shared with anyone, including lawyers, parents, or siblings.
Factor (j). The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A judge may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent. Other questions a Judge may consider could be: How will each parent cooperate with the parenting time schedule? Does either parent criticize the other parent in front of the child? Will each parent encourage a relationship between the child and the other parent?
Factor (k). Domestic violence, regardless of whether the violence was directed against or witnessed by the child. A Judge will consider some of the following questions: Has either parent been threatening, emotionally abusive, verbally abusive or physically violent? Has there been a pattern of domestic violence, including physical and non-physical abuse?
Factor (l). Any other factor the judge considers relevant. This is a catch-all factor that allows a Judge to consider unique aspects of each case. Some considerations could be: If a child has special needs, how does each parent take care of those needs? Has either parent threatened to kidnap the child? Has either parent missed visits with the child or failed to return the child from visits? Are there siblings or other children whose custody is relevant to this child’s custody arrangement? Are there significant others or new spouses whose relationship with the child affects the child’s best interest? Is there a possibility that two or more of the children may be separated? How far apart do the parents live? Especially as it relates to parenting time schedules.
It is important to consult with an experienced family law attorney when contemplating custody arrangements for your children.