When parents cannot agree on how they are going to raise their children after separation, judges or arbitrators have to decide which parent should have custody of a child. That is unfortunate because judges usually have a very limited amount of time to spend with the family. They may not see the children at all, and yet the judge is making critical decisions about the rest of the children’s lives. It is almost always better for the parents to decide what plan will work best for their children because they know the children and themselves better than a judge will ever likely get to know them. Arbitrators can sometimes get to know families a little bit better, especially when they act in the role of mediator/arbitrator. But still, their knowledge of the family will never be as good as that of the parents.
When deciding which parent should have custody, judges and arbitrators give almost no weight, perhaps no weight at all, to what the parents want. The law requires that when a judge or arbitrator makes a decision in relation to a child, the only thing that matters is what is in the best interest of the child. That is often obvious, but sometimes it requires a greater analysis.
When the court must undertake a full analysis of what is in the best interest of a child, there are certain specific factors that it looks at. First are the love, affection and emotional ties between the child and each of the people claiming custody to the child, usually the parents, other members of the child’s family who reside with the child, most commonly the child’s siblings, and persons involved in the child’s care and upbringing, such as extended family, friends or maybe even professional caregivers, teachers or healthcare providers.
Another factor that the judge must consider is the child’s view and preferences, if they can be reasonably ascertained. This means that the child must be making a clear statement of what he or she wants. It is not up to the parents to go and try to elicit this from the child. This child’s opinion must be on that the child developed on his or her own.
Another factor that must be considered is the length of time that the child has spent in a stable home environment. This can be an important factor in custody and access cases because what the court looks at is where has the child been living, for how long had they been living there, and have things been working out. So if a child has been living in one place for a period of time, and everything has gone well, the court is reluctant to change things for the child. The situation in which the child is living is often called the “status quo”. Judges are very reluctant to change the “status quo” if things have been going on well. Further, the longer things have been going on well, the more reluctant judges are to change them.
Judges must also consider the ability of each of the parents to provide for the child. Judges look at which parent can best provide the basic necessities of life, and also provide education and guidance for the child. Where a child has special needs and one parent can provide for those special needs better than the other, that is another important factor that the judge takes into account.
To take into account all of the above considerations, each parent has to put together a plan for how he or she is going to care for the child. Judges, when considering who should have custody, also consider the plans that each parent puts forward. So when a parent is going before a judge to decide who has custody, he or she should have a plan that addresses all the considerations described above.
Judges are also required to consider the permanence and stability of the family unit in which it is proposed that the child lives. So a parent who has a transient lifestyle, or who has a number of partners going in and out of their life, will have a harder time getting custody.
Judges also care about each parent’s ability to act as a parent generally. Judges frequently think that someone cannot act as a good parent if that person cannot support the children’s relationship with the other parent.
Finally, the court is also required to consider the child’s relationship by blood, meaning DNA, or through an adoption order between the child and the people who are applying for custody. This gives biologic or adoptive parents a slight advantage over other people who are not as closely related to the child.
Judges are also specifically required to consider the issue of domestic violence. If a parent has exposed a child to domestic violence, then that parent will have a much harder time getting custody of the child, possibly even getting time with the child.
Note, that in all these factors the judges and arbitrators are required to consider in custody access cases, what a parent wants is not one of them. A parent’s schedule, or financial circumstances, or other needs are not factors that the judge must take into account. All that is important is what is in the child’s best interest. In court, parents should be focussing on their child’s best interests. However, often when parents are in family court on custody of a child or access issues, they have not given any thought to their child’s interests at all.