Factors in Determining Child Custody

What Factors Go Into Determining Custody and Visitation?

The primary consideration is, "What is in the best interest of the child?" The focus is from the viewpoint of the child as opposed to the wants and desires of one parent or the other.

Some states have established a general rule that it is in the best interest of a child to have continuing and frequent contact with both parents and the parent who is most supportive of this concept becomes the custodial parent. If one parent attempts to undermine the relationship between the child and the other parent, this factor could be considered in providing custody or additional visitation to the other parent.

The best interest of a child is determined on a case-by-case basis upon consideration of all relevant facts concerning the circumstances of both parents.

Is Marital Status Important in Seeking Child Custody and Visitation?

Marriage or the lack of marriage, insofar as child and visitation issues are concerned, have no bearing whatsoever in the eyes of the court. The judge will rule on what he or she believes to be in the best interests of the child.

Is Homosexuality an Important Factor in Determining Custody?

This very much depends on the laws in your state (and biases among the judges). Some states treat gay or straight lifestyles in the same light. In other words, being homosexual does not automatically deny you child custody. Rather, the courts apply the same criteria, just as with an heterosexual parent -- how well the parent can meet the needs of the child involved and in "the best interests of the child". If the gay parent measures best, then proper custody could be awarded.

Other states see it differently. A parent’s sexual orientation carries significant weight on the judicial scales, and homosexuality is viewed as being detrimental and unhealthy and "not in the best interests" of a child.

If you are caught in a custody battle, expert witnesses – psychiatrists, psychologists – may be a source of help in the courtroom. Credentialed professionals in their respective fields can give the judge an opinion as to who will better meet the needs of the children). Often, this means home evaluations and psychological evaluations about the fitness of a parent, the stability of the home environment, and the child’s emotional ties to each.

Does Religion Enter Into Determining Custody?

No -- theoretically. Whether one parent practices a religion or not is normally not a factor in deciding custody, unless there is evidence of potential or present harm to the child, such as if the parent engages in unusual "cult" activities or has an unorthodox lifestyle that might likely put the child in danger or be detrimental to the best interest of the child.

Does An Extramarital Affair Have an Impact on Custody?

It could, depending on the facts of the case. Generally-speaking, a discrete affair will normally not be a consideration in determining custody. It will become a significant (possibly negative) factor if the relationship represents a threat, has harmful sexual overtones, or puts the child in embarrassing situations.

If there is a live-in situation, the judge will evaluate, among other relevant circumstances, the relationship between the child and the other live-in partner and any evidence of present or potential harm from the situation in determining whether this should be a factor to consider.

Do the Wishes of a Child Have Any Influence in Custody Decisions?

Some states (NOT ALL) allow children of sufficient maturity to have an impact upon the determination of custody and visitation by considering their desire to reside with one parent or the other. Judges will listen closely to the child's stated preference and his or her reasons. The child does not have the final say and it will be the judge's decision just how much consideration is to be given to the child's wishes, depending on age, maturity, and the quality of the reasons. The overriding question will always be: what is in the child's best interest?

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