Courts Have Broad Discretion to Decide a Child's Best Interest
Often the biggest concern for parents going through a divorce is who will obtain custody of minor children. It can also be one of the most hotly contested issues in a divorce. In all states, custody is determined by what a judge determines is in a child's best interest.
States vary in their definitions of what the "best interest" means. Generally, however, state laws allow judges to have fairly broad discretion in what to consider when deciding custody. Often states will have judges consider the following in deciding a child's best interest:
- The parents' wishes
- The child's wishes, if the child is mature enough to make a reasonable decision
- The child's relationships with people who significantly affect the child, including parents, grandparents and siblings
- The health of all people involved, both mentally and physically, and their corresponding needs
Other common factors considered by the court include the financial situations of the mother and father, respectively, which parent provided the most care during the marriage and who is the more nurturing parent.
Courts will also often look to keep the child in the same home or geographical location, and have a preference to keep siblings together.
Types of Custody
Of course, custody is not necessarily an all-or-nothing proposition. Custody includes both legal and physical custody. Physical custody is the right to have the child live with the person awarded custody by the court. Legal custody, on the other hand, is the ability to make decisions for the child, including education and health care decisions. Occasionally a parent can get sole custody, where only one parent has both legal and physical custody of the child.
If it is in the best interest of the child or children, a court will award joint custody. Joint Custody is presumed to be in the child's best interest in California absent a showing of good cause otherwise. While "best interests" is defined by statute, the trial courts have broad discretion in making a custody determination. For joint custody, the parents can either share both legal and physical custody, or the parents share one kind of custody or the other.
Contact a Family Law Attorney
If you are contemplating a divorce, contact an experienced family law attorney who can discuss your potential custody issues with you.