When parents divorce or when non-married parents split up and need to decide child custody, the court retains the authority to award custody of the children to one of the parents or to award the parents joint custody.
This is a rapidly changing area of the law. Some states presume that the children benefit by having a 50 /50 parenting plan. Other states take a case by case approach and make a determination based on the unique set of facts before the court.
When the court designates one parent as the primary residential parent, it awards the other parent visitation rights. Some states call this residential time in an effort to make both parents feel equally valued. In making a determination about which parent it should award custody, the court must determine what is in the children’s best interest. Each state defines the child’s best interest standard in the applicable custody statutes. Those statutes direct the courts to look to specific criteria when making a determination about what is in the child’s best interest.
Despite the strong historical preference in which courts typically awarded children “of tender years” (pre-teens) to the mother, most states direct the courts to make findings with regard to factors such as the following:
- Which parent fulfilled the functions of primary parent during the year before the separation
- The relationship between the child and parents, siblings, and others who significantly affect the child’s interest
- The children’s adjustment to their home, school, and community
- The mental and physical health of all involved
Once the court decides where the children should live and how often they should live with each parent, a parenting plan is adopted that spells out exactly what the residential arrangement should be. The parties are then bound by the terms of the parenting plan. If they agree, they may deviate from the plan as much as they like, but if they should disagree, the court will enforce the plan.
Oftentimes, the parents engage in lengthy and expensive litigation fighting about who would should be the primary residential parent in order to serve the child’s best interest. When parties are unable to agree to a parenting plan, the court appoints a mental health professional who specializes in child custody to make a recommendation. The two most common professionals hired are parenting evaluators or guardian ad litems.
Parenting evaluators and guardian ad litems interview the husband and wife as well as the children and other persons with knowledge of the parties’ parenting abilities and make a recommendation to the court about what kind of parenting plan should be adopted.
If the parties are able to get along, they frequently agree to some kind of joint custody arrangement. Some states favor joint custody and direct courts to award joint custody unless there is some reason not to. Other states are of the opinion that if parties are so angry with each other that they find themselves in litigation, they are not well suited to co-parent the children since co-parenting necessarily requires cooperation and communication.
Amanda DuBois is a Seattle Family Law Attorney with 20 years of experience helping women out of complicated marriages. She is a published author, a radio personality, and the developer of the Divorganize Divorce Support and Education Program, a 17 video series covering all aspects of Divorce Strategies for Women. If you live in the Seattle area, and need help from a great and caring Seattle Child Custody Attorney, contact Amanda at (206) 547-1486.
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