When two parents cannot agree about a child custody parenting plan, a family court judge will have to make that decision after granting each of the parents the opportunity to be heard.
Judges have discretion, and they may consider a variety of factors when rendering a child custody decision. There are two things judges typically look at when deciding child custody:
- Who has the authority to make the most important decisions about the children
- Physical placement of the children and visitation rights
At the end of the day, in every child custody case, the focus is the child’s best interests. That is the test applied by every family court for every determination where a child may be affected.
This is a flexible test, under which the facts must be thoroughly assessed in light of several factors.
Courts are always looking out for what is in the best interest of the child. Having said that, the implication is that both parents should be stakeholders in a child’s life. In the absence of evidence to the contrary, that is deemed to be in the child’s best interests.
Here, we will talk briefly about certain factors that a judge might consider in a child custody case.
A Parent’s Role Before Divorce
No judge will abruptly remand custody to a previously uninvolved parent.
A parent is more likely to have custody awarded when that parent has a history of making major decisions in the child’s life, and the judge will also consider who has spent the most time with the child.
A family court judge would like to keep such continuity as undisturbed as possible and refrain from making radical changes if they are not warranted. In a way, it’s a privilege, and a judge is not going to grant it to someone that hasn’t been involved in their child’s life prior to that.
A Parent’s Fitness
A judge needs to know a parent is fit to have custody of his or her child. They should be able to think for themselves. And judges might consider a parent’s mental health and if a parent has been convicted of a crime.
Parents may be ordered to undergo counseling or therapy as part of a parenting plan. The court might also look to see if a parent is in good enough physical shape to have custody as well.
Consideration for the child’s safety is, of course, an integral part of this process. Does California Deny Visitation or Custody Based on Parent’s Gender?
If the environment in which the child would be placed in would be unsafe, no doubt the courts would be cautious. One common issue is when one parent is a substance abuser. Courts do want to ensure that the child will be safe, of course. They may grant supervised visits with a parent addicted to drugs or alcohol. That could change over time as the parent recovers.
The Relationship Between the Parents
The default, after all, is that parents will share custody. But the court may hesitate if the parents have a strained and unpleasant relationship and there isn’t much chance that they can work together. The court will use the parents’ relationship to build a strategy without setting up a plan that is unlikely to work to begin with.
One factor that a court will take heavily into consideration is if one parent has a history of domestic violence. A parent should not be placed in a physical situation that is harmful to the parent,” said one of the judge’s rulings. The same is true when a parent is accused of child abuse.
The Relationship Between the Child and the Parent
A judge will again look at the quality of the relationship a child has with each parent. One of the parents may have spent significantly more time with the child and have a much deeper relationship.
Taking the child away from that parent will only make a bad situation worse for the child. Courts may award imbalanced custody if the child has a solid bond with one parent, but a judge is not going to keep the child from the opportunity to form a strong relationship with the other parent.
The Parents’ and Child’s Geographic Locality
Courts are leery of creating the inconvenience of a child having to travel long distances multiple times between the parents homes.
They understand that kids need to go to school and kids need to have time to be who they are and live life as kids. Judges do not want children in a physically or emotionally grueling situation.
If the parents live very far apart, a judge could also develop a solution that would allow one parent to see the child without having to do extensive travel.
Live far away Your child is back home, attending college – but you live thousands of miles away. And with that mileage, the ability to voice your opinion (and contribute to key decisions) is limited if not impossible. Judges will also consider distance when deciding how much parents can share custody.
At the same time, a court also tries to keep a child together with his or her siblings. A court may be averse to separating siblings and will also consider the distance between a child and half-brother or -sister.
The Preference of the Child
Children do not have the right under New Mexico to make a choice regarding where they will live. But the older the child, the more heavily a judge will weigh that preference. Children 12 and older will have some say where they live, but a judge will ultimately decide based on the best interest of the child.
There are potentially hundreds of arguments that can be made to a judge in a child custody case.
A good family law firm will look at your situation and advise you as to what might persuade the court. In the meantime, you should do everything you can to settle a custody dispute without a court hearing on a judge’s determination.
Finaly Thoughts
Contact us today to make an appointment. The Law Office of Anthony Griego LLC’s Albuquerque family law attorney and child custody experts is here to help.
