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  • Writer's pictureAlan Jacobs

How is Child Custody Determined?

If you have ever been involved in a child custody case or you are about to begin one you most likely have heard the phrase “best interests of the child.”

Almost every state determines child custody and visitation issues based on the best interests of the child standard.

State statutes and case law define this standard differently, but in general there are certain factors and themes that appear in the majority of states.

So when you ask the inevitable question of “how is child custody determined”, here is a general list of what the courts use to analyze the “best interests of the child,”:

  • The love, affection, and other emotional ties existing between the parties involved and the child.

  • The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.

  • The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care.

  • The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

  • The permanence of the existing or proposed home or homes.

  • The moral fitness of the parties involved.

  • The mental and physical health of the parties involved.

  • The home, school, and community record of the child.

  • The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.

  • 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 of the child and parents.

  • Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

  • Any other factor considered by the court to be relevant to the particular family.

So playing a part in the child custody analysis will be your location at the time of the divorce, your relationship with your children, your relationship with your spouse, who was the primary caregiver, where the children have an established, familiar environment, where the children go to school, which parent is more likely to encourage the children’s current religious education, etc.

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