Custody Factors

Primary Caretaker of the Child. There is no one factor that is invariably the most important factor in a custody case. The importance of a particular factor will vary with the facts of each case. If one parent in a custody dispute has a major problem with alcoholism or mental illness or has abused the child, that, of course, could be the deciding factor.

If neither parent has engaged in unusually bad conduct, the most important factor is often which parent has been primarily responsible for taking care of the child on a day-to-day basis. Some states refer to this as “the primary caretaker factor.” If one parent can show that he or she took care of the child most of the time, that parent usually will be favored for custody, particularly if the child is young (under approximately eight years old).

Use of this factor promotes continuity in the child’s life and gives custody of the child to the more experienced parent, who has taken care of the child’s day-to-day needs. If both parents have actively cared for the child or if the child is older, this factor is less crucial, although it is still considered.

Child’s Preferences. The wishes of a child can be an important factor in deciding custody. The weight a court gives the child’s wishes will depend on the child’s age, maturity, and quality of reasons. Some judges do not even listen to the preferences of a child under the age of seven and instead assume the child is too young to express an informed preference.

A court is more likely to follow the preferences of an older child, although the court will want to assess the quality of the child’s reasons. If a child wants to be with the parent who offers more freedom and less discipline, a judge is not likely to honor the preference. A child whose reasons are vague or whose answers seem coached also may not have his or her preferences followed.

On the other hand, if a child expresses a good reason related to the child’s best interest--such as genuinely feeling closer one parent than the other--the court probably will follow the preference. Although most states treat a child’s wishes as only one factor to be considered, one state (Georgia) declares that a child of fourteen has an "absolute right" to choose the parent with whom the child will live, as long as the parent is fit.

If a judge decides to talk with the child, the judge usually will do so in private--in the judge’s chambers rather than in open court. Generally, the parents are not in the room when the judge talks to the child, although the parents’ attorneys might be. In some cases, the judge may appoint a mental health professional, such as a psychiatrist, psychologist, or social worker, to talk to the child and report to the court. In addition, a court may appoint an attorney for the child or a guardian ad litem (GAL) to present the child’s views and other relevant information to the court.

Nonmarital Sexual Relationships. The impact of a parent’s nonmarital sexual relationships on a custody determination depends on the law of the state and the facts of the case. In most states, affairs or nonmarital sexual relations are not supposed to be a factor in deciding custody unless it can be shown that the relationship has harmed the child or is likely to harm the child in the future.

If, for example, one parent has had a discreet affair during the marriage, that normally would not be a significant factor in deciding custody. Similarly, if after the marriage is over, a parent lives with a person to whom he or she is not married, the live-in relationship by itself normally is not a major factor in deciding custody. In the case of live-in relationships, however, the quality of the relationship between the child and the live-in partner can be an important factor in a custody dispute.

If the parent’s nonmarital sexual relationship (or relationships) has placed the child in embarrassing situations or caused significant stress to the child, then the relationship would be a negative factor against the parent involved in the relationship. In one case, for example, a mother conducted an affair during her marriage with a man who lived in the neighborhood. She and the neighbor were periodically involved in the woman’s bedroom while the husband was out, but the child was home.

This placed the child in a stressful situation--a situation that grew worse when the wife of the neighbor appeared at the door and demanded that the child tell her what the child’s mother and neighbor were doing in the bedroom. The mother lost custody primarily because of her nonmarital relationship and its impact on the child.

Although most states require a specific showing of harm to the child before nonmarital sexual conduct is considered, courts in a few states are more inclined to automatically assume that a parent’s nonmarital sexual relationship is harmful to the child or will be harmful to the child. As with the issue of a preference for mothers or fathers in custody cases, the issue of a parent’s sexual conduct can be one in which individual judges may have personal feelings that influence their decisions.

Homosexual Relationships. The impact of a parent’s homosexual relationships on custody decisions varies significantly from state to state. Courts in some states are more willing to assume harmful impact to a child from a parent’s homosexual relationship than from a heterosexual relationship. On the other hand, some states treat homosexual and heterosexual relationships equally and will not consider the relationship to be a significant factor, unless specific harm to the child is shown.

Important Evidence A homosexual parent (or a heterosexual parent) seeking custody will have a stronger case if he or she presents evidence that the child does not witness sexual contact between the partners and that the child likes the parent’s partner.

Undermining the Child’s Relationship with the Other Parent. Most states have a specific policy favoring an ongoing, healthy relationship between the child and both parents. If one parent is trying to undermine the child’s relationship with the other parent, that is a negative factor against the parent who is trying to hurt the relationship. If other factors are close to equal, a court may grant custody to the parent who is more likely to encourage an open and positive relationship with the other parent.

Similarly, if a custodial parent regularly interferes with visitation, that is a negative factor against the custodial parent and can lead to modification of custody to the noncustodial parent (assuming the noncustodial parent is able to care for the child properly).

Religious Beliefs and Practices. Under the First Amendment to the United States Constitution, both parents have a right to practice religion or not practice religion as they see fit. A judge is not supposed to make value judgments about whether a child is better off with or without religious training or about which religion is better. If a child has been brought up with particular religious beliefs and religious activities are important to the child, a court might favor promoting continuity in the child’s life, but the court should not favor religion per se.

In some cases, a parent's unusual or non-mainstream religious activities may become an issue. Normally, a court should not consider a parent’s unusual religious practices in deciding custody or visitation unless specific harm to the child is shown. If, because of a parent’s religious beliefs, a parent has not given the child needed medical care or has tried to convince the child that the other parent is evil and should not be associated with, that could be a basis for placing custody with the parent whose religious conduct does not harm the child.

The First Amendment to the U.S. Constitution “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”