Judicial Methods of Determining Child Custody

 

                                            By:  Ed La Vance Adams l0/l/09

 

Objective:  The objective of this article is to explain the procedures used in establishing which parent should have custody of the children.

 

Summary:  The court has many resources for evaluating and for making recommendations about child custody.  These include the appointing of a guardian ad-lit um who is a person, usually an attorney, that looks after the best interests of the child, and individuals in the mental health field who specialize in custody evaluation.  The ultimate decision lies with the court if custody is disputed.

 

In most divorces the issue of custody is agreed upon by the parents.  This agreement will usually be accepted by the court.

 

In the cases that the parents can not agree, the court determines the placement.  The first step is to determine if the parents are fit. The investigation for this determination is done by an evaluator appointed by the court who is often a guardian ad-lit um.  When a trial court then determines, if it does, that both parents are fit and equally capable of caring for the child or children, the court must consider joint custody. 

 

The court is not required to enter a joint physical and legal custody order unless the court specifically finds that such an order would be in the best interests of the child.  The court's primary duty in any custody determination between parents is to decide what is in the best interest of the child (children) and what will best promote a child's welfare and happiness.

 

Many factors are evaluated to make the determination including age of the children, which parent has been the primary care-giver, and if requiring the children to divide their time between homes will have a negative effect.  It is determined a majority of the time that the mother is the proper custodial parent, but the cases awarding custody to the father are increasing.

 

Of course, the court can determine that one or both parents are not fit and deny custody and possibly visitation rights.  These are extreme measures and are not found by the courts often.  However, if there is proof of alcohol or drug abuse, physical and or mental abuse to the spouse or the child, and other character faults attributed to one parent, the court has a duty to make the determination in favor of the non-abusive parent.

 

All efforts should be expended in order to reach an agreement as to custody evaluation outside of court in  order to promote the best interests of the child.