How is Child Custody Determined?

If you have ever been involved in a child custody case or you are about to begin one you most likely have heard the phrase “best interests of the child.”

Almost every state determines child custody and visitation issues based on the best interests of the child standard.

State statutes and case law define this standard differently, but in general there are certain factors and themes that appear in the majority of states.

So when you ask the inevitable question of “how is child custody determined”, here is a general list of what the courts use to analyze the “best interests of the child,”:

• The love, affection, and other emotional ties existing between the parties involved and the child.
• The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
• The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care.
• The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
• The permanence of the existing or proposed home or homes.
• The moral fitness of the parties involved.
• The mental and physical health of the parties involved.
• The home, school, and community record of the child.
• The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
• The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
• Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
• Any other factor considered by the court to be relevant to the particular family.

So playing a part in the child custody analysis will be your location at the time of the divorce, your relationship with your children, your relationship with your spouse, who was the primary caregiver, where the children have an established, familiar environment, where the children go to school, which parent is more likely to encourage the children’s current religious education, etc.

Defining A Substantial Change Of Circumstances For Custody Modification

After a divorce or child custody determination, one thing that frequently comes up is the desire to modify the court’s order. 

 It is well understood that child custody is always modifiable until the child reaches the age of 18. And while that sounds simple enough, the court will often reject petitions for change citing that there has not been a substantial and material change of circumstances since the entry of the last order.

This raises two questions: What constitutes a substantial and material change, and when does this change have to occur?

After a divorce or child custody determination, one thing that frequently comes up is the desire to modify the court’s order.

 

It is well understood that child custody is always modifiable until the child reaches the age of 18. And while that sounds simple enough, the court will often reject petitions for change citing that there has not been a substantial and material change of circumstances since the entry of the last order.

 

This raises two questions: What constitutes a substantial and material change, and when does this change have to occur?

Defining a material change in circumstances

 

Few ideas in law are so vague as the idea of what is actually a substantial and material change in circumstances in terms of child custody.

The short definition is that a substantial and material change is whatever the judge wants it to be. The long definition is a little more complex and state-specific.

In general, a substantial and material change as it concerns child custody can be any of the following:

• The parents have moved and now live a substantial distance apart so that the previously ordered visitation cannot be accomplished. This is especially true where one parent moves out of state.
• The child has started failing in school and is at risk of being placed on a remedial educational track.
• The custodial parent has started living with someone else. This becomes most influential when the new cohabitant has a criminal record.
• One parent is refusing to comply with the ordered visitation or custody.
• The child is starting school. This arises when the child was not in school at the time of the initial order.
• The child is substantially older than at the time the order was entered.
• The child has stated a preference. This only comes into play when the child is old enough to voice his/her opinion in court. Each state has different rules regarding the testimony of children.
• When one parent is charged with some type of familial abuse.

Obviously, this is not an exhaustive list but examples of situations that normally arise to the level of a substantial and material change.

Each judge has the discretion to give greater weight to different changes in circumstance.

When you should file for a modification

The second question is when the change should arise. This may seem simple on its face, but frequently it is not.

The substantial and material change must take place after the entry of the last order regarding custody or visitation, meaning it was not present during the initial hearing.

It is common for parents to argue about each other’s bad acts, but if they existed at the time the last order was entered, the continuation of the act does not constitute a change.

An example of this would be if the mother has always drank a lot around the children, but she has never let her drinking cause any physical harm to the children. If the father raised this issue at the initial custody/visitation hearing, then raising it later would not constitute a change.

On the other hand, if the mother was arrested for driving under the influence after the initial order was entered and had one of the children in the car, it would be cause for a change because the children are now in danger.

That is why it is important to understand not only what constitutes a substantial and material change of circumstances, but also to understand when the change must take place to help you succeed in your custody modification.

Creating a Perfect Parenting Plan in 6 Steps

At the start, divorce feels like a win/lose situation. One parent may seem to have it all on paper, while the other struggles to make ends meet. On the flip side, the parent who seemingly has it all finds that they have little time to spend with their kids, while the other parent is with them all the time.

Whether or not this example speaks to your situation, finding a balance between family life, your child's best interests, your emotions, and everything else is essential to every family when creating a perfect parenting plan. Many points must be considered when crafting the parenting plan that will work best for your family, from schedules and holidays to finances and communication. While your situation may call for you to consider points particular to your situation and call for additional steps, this excellent blog posting outlines six basic steps that will be a great help for any parent to consider in creating the perfect parenting plan.

 

Are mediated divorces better for children than litigated divorces?

While every situation is different, mediated divorces are generally better for the children involved than if the divorce goes through litigation.

Mediated divorces provide an opportunity for the parents of a child to come up with parenting plans that are uniquely suited for the child’s well-being and for the ability and resources of each parent. These are often far better suited for the child’s needs than those that are determined by a divorce court judge, who only sees the dynamics of your family from an outsider’s perspective, and only for a short period of time.

Perhaps more importantly, though, mediated divorces avoid much of the adversarial nature that is the hallmark of a litigated divorce. The kind of conflict that often comes during litigation frequently leads to stress and tension in the personal lives of the spouses who are separating, and this has a negative impact on the children in the family. Even worse, many litigated divorces involve children being called on to provide testimony through court-appointed investigators such as Guardian ad Litems. Even if it does not occur in open court, a child’s testimony can have a great deal of influence on issues surrounding child custody and child support and children, even young ones, apprehend the seriousness of the situation, which can be incredibly stressful for them.

Divorce Myths

When you’re going through a divorce you will have to make more major life decisions than you will at almost any other time in your life. If you make those decisions based on false information (i.e. based on “divorce myths”) you will probably make bad decisions.

Bad decisions lead to bad outcomes.

In divorce, bad decisions also cost you time, money and a huge amount of heartache. That’s why being able to separate fact from fiction is so important in divorce.

In this excellent blog posting, Karen Covey debunks some of the biggest divorce myths floating around today.

 

1. The Divorce System is Fair

2. The Judge Will Rule in My Favor

3. Assets in a Divorce are Divided 50/50.

4. Children Can Choose Which Parent They Want to Live With.

5. Divorce is Primarily a Legal Problem.

6. Custody of the Children Always Goes to the Mom.

7. I’ll Get More if My Spouse Cheated on Me.

8. I Can Stop My Spouse From Divorcing Me.

9. I Don’t Have to Let My Ex See the Kids if S/He Doesn’t Pay Child Support.

10. If I Don’t Like My Divorce Settlement, I Can Change it Later.

Your First Appointment with A GAL

So, your attorney tells you that a guardian ad litem has been appointed in your case. He or she oftentimes hands you a copy of the appointment order, and tells you to make your appointment with the GAL. What can you expect? A guardian ad litem can be appointed by a judge in all proceedings for child custody or for dissolution of marriage or legal separation where custody, visitation, or support of a child is a contested issue. The court must appoint a guardian ad litem in any proceeding in which child abuse or neglect is alleged.

In this excellent blog posting, Scott Trout explains the role of the guardian ad litem and offers tips to help you be prepared for your first meeting with your GAL and will assist you in focusing the GAL’s investigation on what you deem to be important.

 

New Study Further Strengthens Case For Shared Parenting After Divorce

 

Yet another study has been published showing the benefits shared parenting offers families. This one indicates that it’s not only fathers and children who are better off with shared parenting arrangements after divorce, but mothers as well.

When children are infants and toddlers, some parents and some prominent psychologists worry that frequent overnights at the father's home might disturb the relationship with mother. But new research from Arizona State University shows that children of divorce, no matter what their age, benefit from having parenting time with each parent that includes sleepovers at each house.

The study, "Should Infants and Toddlers Have Frequent Overnight Parenting Time With Fathers? The Policy Debate and New Data," was published in the American Psychological Association journal Psychology, Public Policy and Law.

"Not only did overnight parenting time with fathers during infancy and toddlerhood cause no harm to the mother-child relationship, it actually appeared to benefit children's relationships with both their mothers and their fathers," said William Fabricius, ASU associate professor of psychology and lead author of the study. "Children who had overnights with their fathers when they were infants or toddlers had higher-quality relationships with their fathers as well as with their mothers when they were 18 to 20 years old than children who had no overnights."

The study, co-authored with ASU graduate student Go Woon Suh, revealed that the amount of parenting time small children had with their fathers afterwards, during childhood and adolescence, did not make up for the overnights they missed in their first few years.

For fathers, Fabricius said, every increase in number of overnights per week during infancy and toddlerhood was matched by an increase in the strength and closeness of their relationships with their grown children. The grown children who had the best relationships with both of their parents were those who had equal numbers of overnights at each parent's home during infancy and toddlerhood.

Importantly, these findings were the same regardless of whether courts ordered overnight parenting time over the mothers' initial objections, or parents agreed on their own to provide equivalent overnights. Likewise, the findings were the same for parents who had high conflict and those who had low conflict during the first five years of their divorces, the study found.

The benefits to the father include getting him more involved in the child's early life.

"Having to care for their infants and toddlers for the whole cycle of evening, bedtime, nighttime and morning helps dads learn how to parent their children from the beginning," said Fabricius, who studies father-child relationships and the impact they have on the child's health and well being. "It helps dads and babies learn about each other, and provides a foundation for their future relationship. Other studies have shown that programs that encourage married dads to take more responsibility for infant care help those dads learn better parenting skills, and we think that the same kind of thing happens when divorced dads have overnight parenting time."

The mother-child relationships were better when children had any number of overnights with dad; perhaps, because sharing overnights helped mothers avoid the inherent stress of having to be a single, full-time parent of an infant or toddler. And having good relationships with mom and dad, even when not living together, bodes well for the children.

"Good quality relationships with parents in young adulthood predict better stress-related physical and mental health for the children later in life," said Fabricius. "So in a real sense, this becomes a public health issue,"

4 Ways You Can Be The Parent Your Kids Need Post-Divorce

Divorce can be devastating when you’re a parent. You can’t just crawl into a hole and grieve, rant or rage. You must still care for the well-being of your children. And sometimes this is a challenge that overwhelms, resulting in parents who can’t cope with the responsibilities of parenting. When this happens, your children pay a high price. And too often, the parents aren’t totally aware of how their kids are being affected.

It’s not always easy to remember that your children may be grieving as deeply as you are during and after divorce. Consider this: It may be even more frightening for them because they were not responsible for the decision. Nor do they understand the complex dynamics that led up to the split. Children’s fears are compounded by apprehension about whether either of their parents will ever divorce them. They also worry about what will happen to them and their family in the future.

As dramatically as your life has been altered, remember, so too has theirs.

Don’t let your kids confuse sadness for rejection!

In their innocence children often mistake their parent’s grief as rejection. They see changes in Mom and Dad’s behavior, attention and state of mind. But they don’t always understand the depth of pain their parents are experiencing and how it can affect their day-to-day parenting. Most kids can pick up on when you are sad. But they may not always comprehend that your emotional pain is keeping you from being with them in the warm ways you were in the past. When you’re not in the mood to play with them, prepare dinner or help with homework, they may simply feel rejected. Or they may believe you don’t love them anymore.

Due to their lack of sophistication, children often fail to understand that your being upset about the divorce may be affecting your parenting behavior. They may question why you’re not as attentive. Or wonder whether your sadness is their fault. Or worry that you’re angry with them for loving their other parent. This can create emotional instability and deep anxiety for some children who don’t have words to express their feelings.

Be the parent your kids know and need!

Here are some suggestions for helping children adjust to the complex emotional changes in family life due to the divorce.

1. Be generous with your affection: Even if you can’t be “yourself” regarding activities you used to do with the kids, always offer a hug and a smile. A few minutes of cuddle time or kind words of affection will remind them that they’re still loved and important to you.
2. Be discreet when you need to emote: There’s a time for raging, hitting pillows and venting to your friends. But it’s not when the kids are within earshot. When you need to express your grief, find a place away from the children. Remember, you don’t want to deprive them of their childhood nor make them your confidant or therapist!
3. Be sincere about your feelings: When you’re overwhelmed with sadness around the kids, be honest. But also be clear that it’s not their fault. Say something like “I’m feeling sad and don’t feel like playing right now. It’s nothing you’ve done. I hope to be feeling better a little later, okay?”
4. Be receptive to professional help: Having a trusted support system can make all the difference in helping you cope with your divorce. Find a therapist, divorce coach or support group specializing in coping skills for parents. Their insights will help you move through the transitions ahead while being there for your children. Also consider professional resources for your kids. Ask at their schools about programs and professionals who specialize in divorce recovery.