This issue is the most emotional and traumatic part of most divorce cases. There is legal custody—the decision-making part of raising the child—and physical custody—who physically raises the child. Sole or joint custody is possible for both of these types of custody. The basis for determining child custody is “the best interests of the child.” Due to the extensive nature of custody disputes and the laws involved, this subject is best left to an in-depth discussion with your attorney.
A party involved in a child custody matter should become acquainted with the Child Custody Act and study and be prepared to discuss the following factors:
- 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 continuation of the education and raising of the child in its 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 recognized and permitted under the laws of this state in place of the medical care, and other material needs.
- The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
- The permanence, as a family unit, of the existing or proposed custodial 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 deems the child to be of sufficient age to express preference.
- The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
- 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 a particular child custody dispute.
When there are custody disputes, the parents must be advised about joint custody:
- At the request of either parent, the court shall consider an award of joint custody, and shall state why joint custody may or may not be considered by the court. The court shall determine whether joint custody is in the best interest of the child by considering the following factors:
- (a) The factors enumerated above.
- (b) Whether the parents will be able to cooperate and generally agree concerning important decisions affecting the welfare of the child.
- If the parents agree on joint custody, the court shall award joint custody unless the court determines on the record, based upon clear and convincing evidence, that joint custody is not in the best interests of the child.
- That if the court awards joint custody, the court may include in its award a statement regarding when the child shall reside with each parent, or may provide that physical custody be shared by the parents in a manner to assure the child continuing contact with both parents.
- During the time the child resides with a parent, that parent shall decide all routine matters concerning the child.
- If there is a dispute regarding residence, the court shall state the basis for a residency award on the record in writing.
- Joint custody shall not eliminate the responsibility for child support. Each parent shall be responsible for child support based on the needs of the child and the actual resources of each parent. If a parent would otherwise be unable to maintain adequate housing for the child and the other parent has sufficient resources, the court may order modified support payments for a portion of housing expenses even during a period when the child is not residing in the home of the parent receiving support. An order of joint custody, in and of itself, shall not constitute grounds for modifying a support order.
- As used in this section, “joint custody” means an order of the court in which one or both of the following is specified:
- (a) That the child shall reside alternately for specific periods with each of the parents.
- (b) That the parents shall share decision-making authority as to the important decisions affecting the welfare of the child.
Child custody orders are modifiable. The court will consider the time the child has lived in a stable custodial environment and what is in the best interests of the child.
A court must first determine if there is an “established custodial environment.” That determines the burden of proof: clear and convincing evidence that there is a compelling reason to change custody if there is an established custodial environment or the preponderance of the evidence if there is no established custodial environment.
It should be remembered that the child’s preference, although an important factor, is just one factor to be considered of the twelve factors listed above; and it is not in the child’s best interests to try and convince a child to have a preference by promises or threats or to discuss the divorce case with the child.
Call an experienced Family Law attorney at the Cohen Law Office, P.C. today to discuss whether you may be entitled to Child Custody.