If you know someone who has gone through a divorce with children, you might have heard the phrase “best interest of the child”. Basically, the Court looks at the totality of the circumstances in each case on an individual basis in order to determine which parent is better suited for custody of the children. Although a Court can grant joint custody after a trial, that is not often the case as, if the parties have been so acrimonious that a trial involving custody became necessary, it would be unlikely that the parents would be able to work together amicably. As such, joint custody is normally only granted when both parties reach a settlement thereon.
In looking at the totality of the circumstances, the Court traditionally weighs various factors, such as:
Parental fitness - each parent’s physical and mental health; the use of drugs or alcohol; sexual activity; lifestyle; neglect, abuse or abandonment of the parties’ child(ren); physical, sexual or emotional abuse of the other spouse; relative economic status; and a parent’s criminal record.
Cooperation - the willingness of each parent to foster the relationship between the child(ren) and other parent.
Child development - the ability to provide for the child’s emotional and intellectual development; the quality of the home environment and the parental guidance provided; physical safety of the home; ability to best nurture the child’s emotional, social, physical and emotional needs;
Primary caretaker - which parent has been the primary caretaker of the child(ren) throughout the marriage? The Court looks to the following actions to determine who the primary caretaker has been: the preparation and planning of meals; bathing and grooming the child(ren); purchasing, cleaning and margin for clothing; medical care; arranging social interactions after school and transporting the child(ren) thereto; arranging babysitting and daycare; putting the child(ren) to bed and attending to his/her needs during the night; waking the child in the morning and helping him/her wash, dress, etc.; discipline; and religious and/or secular education.
Which parent will maintain stability for the child(ren).
Which parent, if either, wishes to keep all siblings together.
The child(ren)’s preference.
As such, the Court, when making a custody determination, must take into account all of the above-listed factors plus any other factors it deems necessary on a case-by-case basis along with the Court’s perception of each parent from their testimony, and make a decision as to which parent is better suited for custody of the child(ren). Knowing this, most parents come to a mutual agreement regarding custody and visitation. In child custody proceedings, most parents view the “known” of any agreement as preferable to the “unknown” outcome at trial.
More often than not, the Court will appoint an attorney for the child(ren), known as the Attorney for the Child (AFC). In a divorce case, when an AFC is appointed, the Court orders the parties to pay the AFC’s legal fees on a pro rata basis based upon their respective incomes. The AFC remains the child(ren)’s attorney throughout the case or, until a settlement is reached on custody. The AFC is there to advocate for the “best interests of the child(ren)”. You will find out that some AFC’s are better than others. Some meet with their clients and actually listen to them while others only show their faces once or twice and resort to broad generalizations. In an effort to ensure the AFC for the job assigned, the Court will usually ask the attorneys involved to suggest a few names to choose from or agree to a mutually acceptable AFC in order to ensure the child(ren) have the best possible representation.
Should there be a question of the mental fitness of one or both parents, the Court can order a forensic evaluation. This is a psychiatric/psychological evaluation performed on both the parties and the child(ren) using standardized tests and one-on-one sessions. The psychiatrist/psychologist then submits a written report to the Court and the attorneys detailing their findings.
Finally, should the case go to trial regarding custody, the Court can hear testimony from the parents, psychiatrist/psychologist, teachers, religious advisors, doctors, etc. These witnesses will be examined and cross-examined by the attorneys and the AFC and, sometimes, by the Judge. Once the Court has heard all testimony, the Court will render a written decision on the issue of custody and visitation.