How Is Child Custody Decided in a Divorce Case?

Divorce is less common than it used to be. The CDC puts the current U.S. divorce rate at 2.4 divorces per 1,000 people, less than half of what it was at its peak around 1980. That trend is encouraging, but it’s little comfort when your marriage is one of the ones ending — and it’s harder still when kids are caught in the middle between parents who have decided they can’t go forward as a married couple.

The decision to dissolve a marriage will mean big changes for the entire family.

The hope is that once the new boundaries have been worked out, the family can get back on track. First, the issue of child custody needs to be worked out.

What Is the Best Interests of the Child Standard?

No matter what jurisdiction you file for divorce in, the family court judge assigned to your case will always consider the “best interests of the child.” Although that phrase might seem like a cliché, it actually helps create a stable family unit with minimal disruption to the children.

What is the “best interests of the child” standard? These are the factors that judges will consider:

• Emotional bonds with parents: A family court judge will assess the emotional attachment the child has to each parent. Courts assess the bond with each parent. If that is obvious, the judge may be more inclined to grant that parent primary custody.
• Stability and continuity: Stability and continuity are core issues for judges to consider. This begins with where the child will live. Judges would much rather see a child stay in the home they are currently living in to provide that stability.
• Developmental needs: Every child goes through developmental stages. Your judge will assess which parent is best positioned to meet those needs.
• The child’s preference: In some divorces, courts may take the child’s preference into account. That will typically happen when the child is older and has the maturity to share their preference.

A judge can only make child custody determinations based on the evidence you and your attorney will present to them.

Legal Custody vs. Physical Custody Explained

In addition to determining the best interests of the child, the judge will decide which parent will have legal custody, physical custody, or both.

This is how it breaks down:

Legal Custody

Legal custody dictates which parent has the authority to make major, long-term decisions regarding a child’s upbringing. For instance, the parent with sole legal custody makes the major decisions about medical and dental care. They also decide on schooling choices, religious upbringing, and participation in major extracurricular activities.

A judge can also designate joint legal custody, in which both parents must agree on significant life choices. This is often the most common arrangement, and it doesn’t impact where the child will live.

Physical Custody

The physical custody decision will determine where the child lives, and which parent will handle the day-to-day care. The parent with physical custody will provide housing, daily meals, and transportation. They’ll also oversee the homework and bedtime schedules.

Physical custody can be joint custody, where the child lives with both parents based on an agreement. Some parents opt for alternating weeks or a 2-2-3 day schedule.

The other option is sole physical custody, where the child lives primarily with one parent who is designated as the “custodial parent.”

The other parent would have scheduled visitation rights as the “non-custodial parent.”

How a Guardian Ad Litem Impacts Your Case

Family court judges appreciate when parents can provide a custody plan they’ve worked out before the divorce proceedings. If there is contention between the parents, the court might appoint a guardian ad litem (GAL).

This is a court-appointed neutral party who will investigate your family situation.

A GAL does not represent either parent. They will review school and medical records and conduct home visits to evaluate the living environment. After reviewing the evidence, the GAL will submit a written report to the judge and parents. While these findings aren’t binding, a family court judge will rely heavily on them.

GAL programs and the rules that govern them vary by state. During the investigation, your attorney can advise you about what to present and provide to the guardian ad litem in support of your desired outcome.

Why You Need a Family Law Attorney for Custody Disputes

Some divorce filings can get heated. Parents get caught up in the emotional turmoil that comes with ending the marriage.

Unfortunately, kids can find themselves stuck in the middle. You don’t want that to happen. Before things get out of control, it will help to seek guidance from an attorney who understands all the dynamics at play in a child custody case.

The attorneys at Davis & Associates have helped many families work through their child custody arrangements. We build our cases around the same standard the court uses — the best interests of the child — while protecting your goal of creating a stable environment for your children.

There are also situations in which a dispute will arise after the custody agreement is in place. This happens when job schedules change, new expenses arise, or there is a move to a new home. If a child custody arrangement needs to be modified, it has to be approved by the court. We can be your advocate through the entire modification process.

Whether you’re just beginning the process or need to change your current child custody arrangement, we can help.

Call to set up a consultation today to discuss your needs and how we can help.