- Primary Care Giver - Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
- Fitness - What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party's spouse, or any child residing within the party's household (including another child).
- Character and Reputation
- Agreements - Is there a custody agreement already in place?
- Ability to Maintain Family Relationships - Who will be best able to help the child keep family relationships? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any bad action on the part of the other parent?
- Child Preference - The decision of the court may be reversed on appeal if the judge will not hear the child's preference. However, the judge may choose to interview the child outside the presence of the parents. A child as young as 5 or 6 years of age may be heard. Though it is rare, the court will hear from a child under 7 years. The child's maturity, and whether the child can tell the truth from fiction will guide the decision whether a child may be heard. A child of 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the court has the power to appoint an attorney for the child in contested cases.
- Material Opportunity - Which parent has the financial resources to give the child more things?
- Age, Health and Gender of Child
- Residences of Parents and Opportunity for Visitation - How close do the parents live to each other? How close do they live to members of the child's extended family? Which parent lives closest to the child's school and social circle?
- Length of Separation- how long has the parent been separated from the child?
- Any Prior Abandonment or Surrender of Custody - Is there a history of one parent walking out and leaving the other parent to cope with the child and the home? Which parent left when you last broke up?
- Religious Views - These will be important in the court's decision only if you can show that religious views affect the physical or emotional well being of the child.
- Disability - A party's disability is only relevant to a custody decision if the disability affects the best interest of the child.
Capacity of the Parents to Communicate and to
Reach Shared Decisions Affecting the Child's Welfare. This is clearly the most important
factor in the determination of whether an award of joint legal custody is
appropriate, and is relevant as well to a consideration of shared physical
custody. Rarely, if ever, should joint legal custody be awarded in the
absence of a record of mature conduct on the part of the parents
evidencing an ability to effectively communicate with each other
concerning the best interest of the child, and then only when it is
possible to make a finding of a strong potential for such conduct in the
future.
With few exceptions, courts and commentators
agree that joint custody is a viable option only for parents who are able
and willing to cooperate with one another in making decisions for their
child.
When the evidence discloses severely embittered
parents and a relationship marked by dispute, acrimony, and a failure of
rational communication, there is nothing to be gained and much to be lost
by conditioning the making of decisions affecting the child's welfare upon
the mutual agreement of the parties. Even in the absence of bitterness or
inability to communicate, if the evidence discloses the parents do not
share parenting values, and each insists on adhering to irreconcilable
theories of child-rearing, joint legal custody is not appropriate. The
parents need not agree on every aspect of parenting, but their views
should not be so widely divergent or so inflexibly maintained as to
forecast the probability of continuing disagreement on important matters.
The Courts will examine the sense of respect for one another as parents,
despite the disappointment in each other as marriage partners. The fact
that each can appreciated the value of the other to the child, and is
sensitive to the possible loss of a parent-child relationship. There
must be a demonstrated capacity to tolerate the minor differences that
existed and to distinguish the important from the unimportant ones. The
parents should be able to relinquish control and not interfere in the
other parent's relationship with the child. They should each be personally
flexible and able to accommodate to the needs of the arrangement, the
child, and even to the other parent. It was important that each parent had
a sense of self-esteem as a parent in his or her own right in order to
maintain the balance in the co-parental relationship.
Ordinarily the best evidence of compatibility
with this criterion will be the past conduct or “track record” of the
parties. We recognize, however, that the tensions of separation and
litigation will sometimes produce bitterness and lack of ability to
cooperate or agree. The trial judge will have to evaluate whether this is
a temporary condition, very likely to abate upon resolution of the issues,
or whether it is more permanent in nature. Only where the evidence is
strong in support of a finding of the existence of a significant potential
for compliance with this criterion should joint legal custody be granted.
Blind hope that a joint custody agreement will succeed, or that forcing
the responsibility of joint decision-making upon the warring parents will
bring peace, is not acceptable. In the unusual case where the trial judge
concludes that joint legal custody is appropriate notwithstanding the
absence of a “track record” of willingness and ability on the part of the
parents to cooperate in making decisions dealing with the child's welfare,
the trial judge must articulate fully the reasons that support that
conclusion.
Willingness of Parents to Share Custody.
Generally, the parents should be willing to undertake joint custody or it
should not be ordered. We are asked by Appellant, and by the Women's Legal
Defense Fund as amicus curiae, to hold that a trial judge may never order
joint legal custody over the objection of one parent. They argue, with
some force, that unwillingness on the part of one parent to share custody
inevitably presages intransigence or inability to cooperate in making
decisions affecting the welfare of the child. While we agree that the
absence of an express willingness on the part of the parents to accept a
joint custody arrangement is a strong indicator that joint legal custody
is contraindicated, we are unwilling to fashion a hard and fast rule that
would have the effect of granting to either parent veto power over the
possibility of a joint custody award. A caring parent, believing that sole
custody is in the best interest of the child, may forcefully advance that
position throughout the litigation but be willing and able to fully
participate in a joint custody arrangement if that is the considered
decision of the court.
Fitness of Parents.
The psychological and physical capabilities of both parents must be
considered, although the determination may vary depending upon whether a
parent is being evaluated for fitness for legal custody or for physical
custody. A parent may be fit for one type of custody but not the other, or
neither, or both.
Relationship Established Between the Child and
Each Parent.
When both parents are seen by the child as a source of security and love,
there is a favorable climate for joint custody. On the other hand, joint
custody may be inappropriate when opposed by the child, or when there are
indications that the psychological or emotional needs of the child would
suffer under a joint custody arrangement.
Preference of the Child.
The reasonable preference of a child of suitable age and discretion should
be considered. In addition to being sensitive to the possible presence of
the “lollipop” or “rescue” syndromes, the trial judge must also recognize
that children often experience a strong desire to see separated parents
reunited, and this motivation may produce an unrealistic preference for
joint custody.
The so-called “lollipop syndrome” relates to
the situation where one parent in a custody battle may shower the child
with gifts and pleasant times, and impose no discipline in order to win
the child's preference. The “rescue syndrome” relates to the expression of
preference by a child for the parent perceived by the child to be the
“weaker” of the two, in the belief that the stronger parent will survive
in any event, but the weaker parent needs the child.
Potential Disruption of Child's Social and
School Life.
Joint physical custody may seriously disrupt the social and school life of
a child when each parent has the child for half the year, and the homes
are not in close proximity to one another. In such cases the amount of
time each parent has physical custody may be adjusted without interfering
with the concept of continued joint custody.
Geographic Proximity of Parental Homes.
Parental homes within the same school district offer certain advantages in
a joint custody situation. The child may enjoy joint physical custody
without changing schools or being required to constantly change a circle
of friends, and the parents may find proximity a benefit in discussing the
decisions to be made concerning the child. However, distance is not a bar,
and when the distance between homes is great, a joint custody arrangement
may offer the only practical way to preserve to the child a meaningful
relationship with each parent. Depending upon the age and emotional
maturity of the child, similarity of the respective home environments may
be desired, or exposure to dissimilar environments, cultures and
opportunities for learning may be indicated.
Demands of Parental Employment. In some situations, joint physical custody will be appropriate only if the work hours of the parents are different, or there is flexibility in the demands of the employment of each.
Age and Number of Children.
The factor of age obviously interrelates with other factors already
discussed. The number of children involved may pose practical difficulties
to a joint custody arrangement, but on the other hand may be helpful to
both parents in bringing about a sharing of the pressures of single family
parenting of a number of children. In rare cases, split custody may be
preferred over sole or joint custody.
Sincerity of Parents' Request.
A number of interested observers have opposed the concept of joint custody
absent mutual agreement on the ground that one spouse may interpose a
demand for joint custody solely to gain bargaining leverage over the other
in extracting favorable alimony, child support or property concessions.
Drawing upon the reasoning of King Solomon writers have suggested that a
parent truly interested in the welfare of a child will give up almost
anything to protect the child, and thus the threat of enforced joint
custody can be used to extract unwarranted concessions. While the remedy
they suggest-denial of joint custody in the absence of parental
agreement-is unnecessarily restrictive, we acknowledge the legitimacy of
these concerns and highlight the necessity to carefully examine the
motives and sincerity of each parent.
Financial Status of the Parents.
Joint physical custody imposes financial burdens upon the parents because
of the necessity of maintaining two homes for the child, with separate
furnishings and often separate toys, equipment, and clothing.
Impact on State or Federal Assistance.
Aid to families with dependent children and eligibility for medical
assistance may be affected by the award of joint custody. The necessary
showing of “absence” of a parent may be challenged when there is an award
of joint custody that includes shared physical custody. Although the
primary focus is properly upon the best interest of the child, it is also
appropriate to consider the salutary effect that joint custody may have on
the parents, not only because their feelings and interests are worthy of
consideration, but also because their improved self-image as parents is
likely to redound to the ultimate benefit of the child.
Other Factors.
The enumeration of factors appropriate for consideration in a joint
custody case is not intended to be all-inclusive, and a trial judge should
consider all other circumstances that reasonably relate to the issue. The
resolution of a custody dispute continues to be one of the most difficult
and demanding tasks of a trial judge. It requires thorough consideration
of multiple and varied circumstances, full knowledge of the available
options, including the positive and negative aspects of various custodial
arrangements, and a careful recitation of the facts and conclusions that
support the solution ultimately selected.
Regardless
of any agreement you may have reached, the courts will look at custody
to determine the "best interests" of the child. They look at several
factors. No single factor is most important. This is a list of some,
but not all, of the factors, that courts will consider.
- Primary Care Giver - Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
- Fitness - What are the psychological and physical capacities of the parties seeking custody? The court may also consider evidence of abuse by a party against the other parent, the party's spouse, or any child residing within the party's household (including another child).
- Character and Reputation
- Agreements - Is there a custody agreement already in place?
- Ability to Maintain Family Relationships - Who will be best able to help the child keep family relationships? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any bad action on the part of the other parent?
- Child Preference - The decision of the court may be reversed on appeal if the judge will not hear the child's preference. However, the judge may choose to interview the child outside the presence of the parents. A child as young as 5 or 6 years of age may be heard. Though it is rare, the court will hear from a child under 7 years. The child's maturity, and whether the child can tell the truth from fiction will guide the decision whether a child may be heard. A child of 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the court has the power to appoint an attorney for the child in contested cases.
- Material Opportunity - Which parent has the financial resources to give the child more things?
- Age, Health and Gender of Child
- Residences of Parents and Opportunity for Visitation - How close do the parents live to each other? How close do they live to members of the child's extended family? Which parent lives closest to the child's school and social circle?
- Length of Separation- how long has the parent been separated from the child?
- Any Prior Abandonment or Surrender of Custody - Is there a history of one parent walking out and leaving the other parent to cope with the child and the home? Which parent left when you last broke up?
- Religious Views - These will be important in the court's decision only if you can show that religious views affect the physical or emotional well being of the child.
- Disability - A party's disability is only relevant to a custody decision if the disability affects the best interest of the child.
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