Despite the formal custody factors that most states call for in determining where children should live after divorce, the judges who actually apply those factors may look at the question quite differently. I added this page to describe how custody works in the real world.
Here are the factors that judges actually seem to use in deciding where children should live. This is not an official statement, and it doesn’t represent anyone’s opinion but mine.
- Whether you’re Mom
- Preference for the status quo
- Who has consistently performed key parenting activities for the child
- Who will help ensure that the other parent spends time with the child.
- Track record of success
- Standard of living
- Quality of school system
- Relations with extended family
- What the child wants (depending on the child’s age and maturity)
Whether You’re Mom
This isn’t true in all states and all courts, but in general, courts still prefer mothers over fathers when it comes to custody of children. In order to get custody over Mom’s objections, most judges would require that Dad show something pretty distressing that Mom has done as a parent, like driving drunk with the children, offering drugs to the child, or leaving a young child unattended for quite a while.
Preference for the Status Quo
Most judges want to leave things alone. If the parents have been separated for several months and living with their father, the preference for the mother is likely to be lost. By the same token, if the children have been alternating between Mom’s house and Dad’s house, most judges would be inclined to leave well enough alone and order that pattern to continue.
Who Has Consistently Performed Key Parenting Activities for the Child
For example, who gets the child up in the morning, picks out his clothes, helps her brush her teeth, takes him to school? Who picks him up from school, fixes the afternoon snack, fixes supper, makes sure homework gets done? Who supervises bath time at night, reads a story, says prayers? You get the idea.
Who Will Help Ensure That the Other Parent Spends Time with the Child
If one of the parents has consistently interfered with visitation, or even if the evidence is unclear but it always seems too difficult, some judges would consider having the child live with the other parent in the hope that the other parent will do a better job of allowing parenting time for both Mom and Dad.
Courts may say they don’t pay attention to this, but they do. A parent who has been unfaithful, particularly if with a succession of different lovers, starts with one foot in the bucket when it comes to custody. The same goes with a parent who is guilty of stealing, or fraud.
Track Record of Success
If the child was doing well in school (or even performing at an average level) with one parent, and if the child has been struggling since she went to live with the other parent, courts will consider seriously whether she should return to the original arrangement. The same goes for attendance, and to a lesser extent performance in extracurricular activities.
Standard of Living
Again, most judges wouldn’t want to admit that they consider this, but it matters how the child would live. If Dad can offer the child his own room and Mom would put him on a hideaway bed in the den of the double wide with his cousin Fred, Dad’s going to have the inside track.
Quality of School System
Judges pay attention to things like class size, availability of extracurricular activities (particularly of the kind the child would seem to enjoy), quality of teaching, and percentage of the student body that goes to college. This sometimes work to the disadvantage of the parent who lives in a less wealthy area.
When Mom has moved every six months depending on which boyfriend has a new car and Dad has lived in the same simple apartment for five years, that will help Dad. Judges usually believe (for good reason) that a more stable environment is more nurturing for children.
Relations with Extended Family
It may not take a village to raise a child, but aunts, uncles, and grandparents sure can help. Judges pay attention to that.
The Child’s Preference Below age seven, most judges don’t want to hear anything about the preferences of a child and may have a negative response to the parent who attempts to make a child state them. At age 14 or above, it becomes difficult for a judge to ignore the preferences of a child. (After all, what judge doesn’t understand how miserable a 15 year old child can make life for the custodial parent if he doesn’t want to be there?). Between the ages of 7 and 14, judges seem to apply their judgment about the maturity of the child. For example, a 10 year old child who says, “I want to live with my Dad, because when I’m there I have a quiet place to study, regular mealtimes, and a consistent bedtime so that I feel good going to school” is going to get more attention from the judge than a 13 year old who says “I want to live with my Dad because he has a swimming pool and drives a Porsche.”