Child Custody How are Child Custody Decisions Made in Court?

There are several factors used by a court in order to make child custody decisions.

The Best Interests of the Child Standard

The courts in every state use the "best interests of the child" standard to award child custody. The standard generally tries to find the optimal mix of factors that will promote the overall happiness, security, physical and emotional welfare and positive direction of the child as he or she progresses towards becoming an adult. While the ultimate decision is made by the judge, the process getting there is complicated. Each state may define the standard somewhat differently and not always in specific detail. And sometimes the exact mix of what are "the best interests of the child" are difficult to find or of great dispute between parents.

Change can be Difficult for Children

The best interests of the child standard is of paramount importance for good reason. The fact that parents are getting a divorce should not dictate a child being moved out of one home and into another. Judges understand that moving children out of the home in which they are used to living can be a difficult and impacting emotional experience. If the parents have separated prior to divorce, the parent where the child has primarily been staying frequently has an advantage. If one parent spends a good deal of time in the home, such as a stay at home mom, this will likely carry an even greater impact. When both parents are still living in the same home the parent who normally cares for the child will likely receive more favorable treatment.

What a Child Wants is Important

Many courts will consider what the child prefers in making a decision on custody. A judge will probably be more moved by the wishes of older children, such as teenagers, who are more mature than younger children such as infants. While a child's wishes may be considered, they do not control a child custody decision alone.

Child Safety is of Paramount Concern

Conduct that may affect the health, welfare and safety of a child are extremely important. A parent who has been found guilty of felony crimes will raise concern in the minds of most judges. Any person with has a history of domestic violence will create speculation as to whether they capable of providing a home reasonably safe for children. Accusations alone, however, are not controlling and they are easy to make. False and frivolous accusations of domestic violence can make a judge question the mental fitness of the wrongfully complaining parent. Reckless conduct that unreasonably places others at risk, such as DUI or DWI convictions, may also be a factor in deciding factor as to the mental fitness of a parent.

Morals and Affairs Might be Irrelevant in Child Custody Decisions

It's difficult to lose sight of the fact that child custody decisions only concern the welfare of the child. If a parent had an affair at the workplace but out of the vision and perception of the child, a judge may consider this act irrelevant and not a factor. While the angry spouse might consider infidelity an important question of moral fiber, a judge may not see it bearing on the fitness of the cheating spouse to be a responsible parent.

What is important is the attitude that a parent displays to the court. It's easy to lose perspective of what is most important during a difficult divorce. A court will embrace the parent who puts his or her interests and anger aside for the benefit of the child. When a parent prioritizes the dispute, such as interfering with visitation rights, a judge will take immediate notice and be highly displeased.

The Facts and Circumstances Govern

Every child custody case is unique, despite having similarities to other cases. While general statements can be made about how a court is guided in making a child custody decision, all of the facts and circumstances in each case control the outcome. Having a good child custody attorney is not required but certainly most helpful in preparing and presenting a case in front of a judge. Engaging the assistance of an expert who is not personally involved in the dispute has additional advantages - having someone around who can provide unbiased perspective and feedback before making a case in court.
Divorce & Family Law
Child Custody Law
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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Michael Wechsler
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