Family Law FAQ

What Factors May the Court Consider When Awarding Custody?

Does custody always go to just one parent?

Custody does not have to go to one parent (sole or primary custody); joint/shared/split custody may be an option as well. There are two types of joint custody. If parents have joint legal custody, they each have equal rights to make major decisions for their child/children and must agree on these decisions. Some examples of major decisions are schooling, religion, healthcare, discipline, bedtime, age of driving and other activities. If parents have joint physical custody, the time each child spends with the parent is split equally. It is also possible for parents to have joint legal custody and not joint physical custody. Then the child may spend less time with one parent, such as weekends, holidays or other specified time periods. Different jurisdictions have statutes regarding joint or split custody with their own requirements. However, commonly, the courts look at the fitness of each parent, their ability to cooperate with each other, the child’s relationship with each parent and each parent's desire to be involved in the child’s life.

Are courts more likely to award custody to mothers than fathers?

Historically, the court presumed the mother to be the best parent to award custody of the child. Today, that is not the case. Courts must consider the best interests of the child when determining custody. The best interests of the child have nothing to do with a parent's gender. The courts look at criteria such as the wishes of the child and the parents, the relationship of the child to the parents, siblings and any other extended family, the location of the parent (considering adjustment to school, church, etc.), the health of the child and/or parents, the financial situation of each parent and which parent has been the primary caretaker of the child thus far.

Even though there is no legal presumption in favor of the mother, it is important to note that courts in some jurisdictions may still give preference to the mother in custody disputes where the child is an infant, under the age of six or a female child of mature years. However, if this is the practice, courts still consider who has been the primary caregiver, the mental and physical health of the parent, the financial situation of the parent and other similar criteria to the “best interests of the child.”

Can the sexual orientation of the parent/parents affect who gets custody of the child?

There is no difference between the parenting skills of homosexual, bisexual or transgender parents and heterosexual parents. Of course there are many misconceptions and falsehoods about homosexual and lesbian parents, a homosexual parent is not considered unfit (simply due to their sexual orientation) as a matter of law. The court considers the best interests of the child when determining custody. The sexual orientation of one or both parents is only considered a factor if there is evidence that his or her same-sex relationship has harmed the child. Absent evidence of harm, sexual orientation does not make a parent unfit and should not affect the courts decision regarding which parent receives custody of the child.

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