Factors that Help Courts Determine Who Shall be Awarded Child Custody

Factors that Help Courts Determine Who Shall be Awarded Child Custody

Dec 29

The close of the nineteenth century saw how courts awarded custody of a child to fathers after divorce. This was due to the Property Law and inheritance issues in effect and observed during those times. The way how courts perceived who was more capable of providing children’s needs, however, changed at the start of the twentieth century, resulting to the transfer of custodial right to mothers, naturally the better caretakers of young children. This position of the courts became the basis of “The Tender Years Doctrine,” which was observed up to the 1970s. Today, though some courts automatically award custody to mothers, many others no longer see father or mother as having the sole right for custodianship. If the court finds both spouses fit to care for their child, then the court will never deny the child the love and care of both parents. This is because courts know and believe that the care and love that can be provided by both parents are essential in the growth and development of their child. Thus, many courts now decide on joint legal and physical custody, giving both parents equal time and rights over the care and concern of their child. Under the joint custody ruling, a child may also decide to reside with one parent or may move from one parent’s residence to another.

Joint custody is usually the decision unless it can be proven that one parent is unfit or is not responsible enough to care for his/her child. Being an unfit parent can be due to a variety of different reasons, like: a medical condition that would render a parent incapable of providing the amount of care and attention the child/children need/s; abusive parental behavior (physical and/or verbal abuse); a parent being an alcohol and/or drug dependent; a parent exposing his/her child to pornographic elements and/or illegal activities; abandonment of the child; or, use of excessive, unnecessary forms of discipline.

If any of the above is found in both parents, then the court can choose to award child custody to a grandparent or a court-appointed caretaker. If only one parent is considered unfit, then the court may choose to decide on sole custody, awarding custodianship to the parent who has the capability to provide the child’s needs.

Some states consider different factors when resolving the issue of child custody. One underlying factor, however, which remains the same no matter in which state one resides is “the best interest of the child.” States include the following as falling within the scope of “in the best interest of the child”:

  • The child’s gender and age;
  • The amount of involvement each parent has in activities participated in by the child;
  • The parents’ level of relationship with the child;
  • The health risks and safety of the environment where each parent lives; and,
  • The lifestyle, stability, and health of each parent as these can affect a child’s academic performance.

In some states courts determine custodianship or conservatorship of a child using the following standards: (i) assurance that the child will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (ii) provision of a safe, stable, and non-violent environment for the child; and, (iii) encouragement of parents to share in the rights and duties of raising their child even after they have separated or dissolved their marriage.

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