In some senses, the court has to determine what is in the child's best interests in every divorce case in which children are involved. There are just so many factors that come into it. Questions they ask include things like:
- How old is the child?
- What does the child want?
- How can the parents support the child?
- Who is the caregiver?
- Do parents offer a safe living situation?
These are just a handful of examples, but courts could look at potentially hundreds of different factors to see what they feel gives the child the best possible future. It's important to know how this works.
One thing that many experts seem to agree on, though, is that joint custody and shared parenting help children far more than they cause harm. The old cliches about children living with their mothers and getting support money from their fathers don't always hold true. Courts want both parents involved. They think that gives children the upbringing that they really need, even when their parents get divorced.
A doctor who studied childhood behavior and divorce put it like this: "Social scientists can now cautiously recommend presumptive shared parenting to policy makers. I think shared parenting now has enough evidence...[that] the burden of proof should now fall to those who oppose it rather than those who promote it."
In the past, people have often felt like they have to "fight" for their rights as a parent. They worried about never seeing their kids again. This statement, however, shows that courts have changed their thinking. They now often assume that kids should spend time with both parents and make other rulings only when some key evidence proves it would actually be better for the other parent's time to be limited or restricted entirely.
Reasons that they may say a parent cannot have custody include:
- That parent is not physically or mentally healthy enough to take care of the child
- The parent has a history of abusing the child
- The parent has a criminal history
- The parent engages in illegal activities, such as drug use
- The child has special needs and requirements
The court will also consider more "minor" factors, like where the child goes to school. They will try to find a child custody solution that addresses these things and still allows both parents to stay involved, however.
With the way that family law is changing and perspectives are shifting, it is important for parents who are going through a divorce to know all of the legal steps they need to take. Divorce is not what it was 50 years ago, and you must understand exactly how and why.