It has been my experience, especially since the requirement that parties to a divorce action attempt an out of court settlement (or mediation) of pending issues, that child custody is usually settled out of court by that very process. Such a settlement is usually better than having a judge decide the issue of child custody. Who is more qualified to decide what is best for their child than parents? Provided the parties are both reasonable and responsible parents they are the most qualified to make that decision. In divorce cases the issue of child custody is often times settled with the mother and father agreeing as to who has primary custody and who has visitation and when, etc. In those cases, the parents will solemnize this agreement in a Permanent Parenting Plan which provides all the terms and conditions of child placement, including the designation of the primary custodian, when visitation will occur with the non-custodial parent, how holidays are to be divided, which parent makes the non-emergency decisions relative to health care, religion, education and extra curricula activities involving the child, who claims the child as a dependent on future income tax filings, who pays child support and how much, who has the child medically insured and how uncovered medical expenses are to be paid. The parenting plan has other important provisions including an agreement that both parties understand that they are under an edict, to encourage a meaningful relationship with the other parent by allowing telephone calls to the child by the other parent, the right of the non-custodial parent to have access to school and medical records and by not speaking badly about the other parent to the child or within earshot of the child.
If the parties cannot settle the custody issue during their divorce, then the courts are left to decide that upon an appropriate parenting plan. In doing so, the courts are required to make a decision that is in the best interest of the minor child. In such cases the courts will use a comparative analysis and weigh several factors to make that determination. Pursuant to statute our courts are to consider the following in making that decision: 1. The nature of both parent-child relationships, including whether one parent has been the primary caregiver 2. Each parent's history of and potential for meeting parental responsibilities, including adherence to previous court orders related to parenting arrangements and willingness to encourage a relationship with the other parent3. A parent’s refusal to attend parenting education seminars ordered by the court 4. Each parent’s disposition to provide the child with material, medical, educational and other important needs 5. To what extent a parent has acted as the primary caregiver 6. The parent-child "love, affection, and emotional ties" that have been established 7. The child's developmental stage and emotional needs 8. Each parent’s “moral, physical, mental and emotional fitness" to parent the child 9. Other relationships, for example with siblings and other relatives, and the child's involvement with "physical surroundings, school, or other significant activities" 10. The importance of continuity, meaning how long a child has been in a "stable, satisfactory environment" 11. Any "physical or emotional abuse" of the child, by the other parent or other person 12. The “character and behavior" of anyone who lives with or visits a parent and that person's interactions with the child such as a paramour of a separated spouse. 13. The "reasonable preference" of a child if at least 12 years old; judge may hear younger child's preference upon request, but older children's preferences are normally given greater weight * 14. The work schedules of the parents 15. Any other relevant factors such as the court may deem appropriate. *Many wrongfully believe that upon a child reaching 12 years of age or older they can decide or choose which parent has custody. That is NOT the law. The law simply provides that a child age 12 or older can testify as to their preference and the court MUST consider that preference among other factors. The courts are NOT bound by that preference, but they are bound by law to consider it. The courts are not bound to consider the preference of a younger child.