A judge will assess many factors when considering which parent should have custody of a child, but the decision will always be in the best interest of the child, revealed divorce attorney Daryl Weinman. —
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While the complexities of custody battles are unique to each case, each child, and each family, the Founding Partner of Weinman & Associates, P.C, in Austin, TX., pinpointed several areas that could ultimately influence a judge's decision.
While states adopt a "best interest of the child" standard, judges will consider the child’s experience and each parent's living situation. "Judges are prohibited by statute to consider the gender of a parent when considering which parent should be the primary custodian, regardless of the child’s age. Instead, they will look closely at who has been the child’s primary caregiver to-date, and whether that parent is doing a good job."
Weinman said that the parent who will continue to live in the family home has an advantage because moving the child out of that home at the time of separation just adds to the negative impact of a divorce on a child. Remaining in the residence adds a level of stability, certainty and continuity in their young lives.
"A parent that wants to spend a good chunk of time with their child post-divorce should ensure their living situation reflects that."
Living close to your ex-spouse may also factor in a judge's decision as the closer you are, the more likely they will order a time-sharing plan that gives both parents balanced time with their children. Less travel for children to school and activities is an important consideration.
Each parent's commitment to support each other in a relationship with their children will sway a judge's decision. Evidence that a spouse is highly disruptive or interferes in the child-parent dynamic will be called to task. The more cooperative the parents are and the more they support and encourage a relationship with the other parent, the better the outcome for all involved.
The wishes of older children will generally be considered, as long as such wishes are expressed for the right reasons. A judge may talk to the child to determine their preferences about custody and visitation, and some states require courts to consider their views. But if the court suspects that a parent has been bribing a child, or otherwise influencing the child, the decision is likely to go against that parent.
Weinman said: "When a custody battle occurs, a judge will take a balanced look at each parent's circumstances, but they will be mindful to look at continuity and stability as against major upheaval and change in a child's life."
Evidence that a parent has been prioritizing their own needs above the child’s needs, such as starting a new relationship quickly, will hurt that parent’s request for primary custody.
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