What Factors Does The Court Consider In Awarding Child Custody?

One factor the Court considers is the child’s preference, which is discussed in another article.

Another factor is the benefit of keeping siblings together (including half-siblings). Let’s suppose that there are 3 children but this is the mother’s second marriage, and the father’s first marriage. The mother had 2 children from her previous marriage and she and the new husband have one child and now they are getting a divorce. One thing that the court would consider is keeping all 3 children together for the benefit of the strength of the relationship between siblings or half-siblings, because the siblings are going to be a main source of stability throughout that child’s entire life. If the court can maintain that stability by keeping the children together, then they will do so.

The court generally doesn’t like split custody arrangements and doesn’t like to split the children up. The relative strength of the child’s bond with one or both of the respective custodians. “Bond” is a fuzzy word that can mean a lot of things, but in this context what it means is the depth, quality, and nature of the relationship between the parent and the child. Most often, courts in Utah will not do an extensive inquiry into this factor. Usually, if each parent has a decent bond with the child(ren), the courts are not going to consider one spouse to have a leg up over the other, even if the primary caretaker may have a somewhat closer bond because of spending more time with the child. If both parents have a good bond, the courts are not generally going to find this factor to be differentiating.

I use the word “differentiating” throughout as we discuss the various factors, meaning that this factor favors one parent over the other and therefore “differentiates” between the two parents. If, however, one parent has not been as much involved in the child’s life (let’s say they’ve been incarcerated or for some other reason they’ve been absent for a long period of time), the courts might consider the bond to be a “differentiating” factor.

The next factor that the court considers is the primary caretaker factor. If there has been an arrangement where the children had been generally happy and well adjusted, the court lean toward that arrangement. Whoever has been the primary caretaker has a significant advantage in custody litigation. There is a presumption that the primary caretaker will continue to be the primary caretaker.

25 to 30 years ago there was a doctrine in the state of Utah called the “child of tender years” doctrine, that basically stood for the idea that young children are generally better off with their mother. As research into parents and children became more advanced, the research didn’t support that idea. Legislatures throughout the country began to catch up. So this “primary caretaker presumption” supplanted the idea that a child would be better off with their mother. It often still favors mothers simply because statistically, more mothers are primary caretakers than are fathers, but it removed the gender as being the issue. Unfortunately in the state of Utah there are a number of firms who market to fathers by fanning the flames of their fear that a woman’s gender automatically gives her an advantage in court. That’s no longer true, but unfortunately it is a marketing tool that has been used.

The legislature, following new research, has adopted a statute that makes it easier for parents that are not the primary caregivers to be more involved in their children’s lives. There is a presumption that joint legal custody is in the children’s best interests. It used to be that joint legal custody was the exception and not the rule. Now it is becoming more of the rule and less of an exception. However, if it can be demonstrated that the parties just can’t get along and cannot make decisions regarding the children together in a consistent and meaningful way, then that presumption can be challenged or rebutted, and joint legal custody may not be awarded. If the parties are generally capable of getting along, at least in regards to the children, and make decisions consistently in the best interests of the children, then the court is going to assume that joint legal custody is appropriate.

For parents who were not the primary caretaker but they were very actively involved in the children’s lives and did much of the caretaking even if they didn’t do the lion’s share of it, then there is an alternative statutory minimum visitation schedule that basically gives a 60/40 split. 140 of overnights per year to the parent who was not the primary caretaker but was very actively involved. The courts have come a long way from 25 or 30 years ago, back when gender mattered more than who had actually been involved in the children’s lives.

That being said, the primary caretaker factor is still huge.

Another factor the court considers is the moral character and emotional stability of each parent, compared and contrasted against each other. If you have a parent who has been engaged in criminal activity frequently or has engaged in immoral conduct consistently, then these factors would weigh against that parent. However, it’s most common for the emotional stability factor to either act against or favor one side over the other. If one parent has demonstrated mental illness or a personality disorder or other behavioral symptomology that is not under their control, then it acts against them.

It’s okay to be diagnosed with something as long as the parent is not symptomatic, and/or that parent doing what is necessary to take care of their emotional health. For example, if a parent that is bipolar that is responsibly taking their medication, and the condition is under control, the court will not weigh this factor against them very heavily. However if a party has mental illness and refuses to acknowledge it or refuses to take the steps necessary to treat it, the court is going to weigh this factor against them very heavily.

Another factor is the duration and the depth for the desire of custody. If a parent has been in and out of the child’s life and hasn’t really expressed the desire for custody, if they don’t really want to spend much time with the children, or if their behavior is otherwise inconsistent with a genuine desire for custody, the court is going to consider their previous behavior and weigh it against them. If it is demonstrated that each party has demonstrated the desire to have significant contact with the children or custody of the children, this factor won’t weigh very much in either side’s direction. It will be non-differentiating.

Another factor is a parent’s ability to provide personal rather than surrogate care. In other words, is one party financially able to stay home and spend more time with the children rather than farming them out to the daycare provider? Most parents are going to have to work full time in order to support their families. However, let’s suppose that one party has a significant enough income that they don’t have to work very much, or that they have a very fluid work schedule and are able to calendar their work time when the children are not home, or that the parties have divorced and now they are remarried and their new spouse supports them so they are able to stay home; then this factor becomes significant and could be differentiating in favor of the parent who stays at home.

The next important factor is significant impairment of the ability to function as a parent through drug abuse, excessive drinking, or similar causes. Obviously if a parent is abusing drugs or alcohol, the court will consider that to be a significant risk to the children. Depending on the extent of it, the court may consider it to be child neglect because the parent is unable to function as a parent due to the problem.

Another factor that the court can consider but is no longer required to whether a parent has relinquished custody in the past.

Kinship is another factor, sometimes including step parents. It’s not unusual at all of course for parents to get remarried but, if a child has an unusually strong bond with a step parent, or let’s suppose that one parent’s extended family is extremely close to the child and the other parent’s extended family lives 2000 miles away and doesn’t really interact much with the child, then the court can consider the kinship of the other family members in the child’s life to be an important factor in determining custody.

Financial condition is another factor that can weigh in a custody determination in favor of one side or the other, but usually this factor doesn’t weigh in very heavily because even if one parent is financially better off than the other, that’s what child support is for.

The court will fashion child support awards to make sure that the child’s minimal needs are met. When I see this factor being used in court, I have seen it weigh in favor of one side or the other but usually the court will indicate that this factor is not extremely significant and only slightly weighs in favor of one parent or the other.

Another factor that the court considers is if there is evidence of abuse or neglect of the child, another child or the spouse. If there’s been domestic violence or child abuse or neglect then that becomes a very significant factor.

The Court may also consider each party’s propensity to follow or interfere with visitation orders or other court orders. Which parent is more likely to actually comply with the court’s orders and to follow the visitation orders of the court? Which parent is more likely to be supportive of the relationship between the children and the other parent? That is a very significant factor. If a court determines that one parent is extremely miserly or less than generous in supporting the other parent’s relationship with the children, the courts might decide to give custody to the parent who is more likely to be supportive.

If the parent has a tendency to engage children in parental conflict and loyalty conflict, or overburdening children with information that they really shouldn’t hear and disparaging the other party or other types of inappropriate kinds of remarks, then those will be factors that the court will weigh significantly in determining custody.

Those are the main factors, and with some of those being as important as they are, you can see why the child’s preference may not be as significant as many parents believe it should be.

For more information on Factors Determining Child Custody, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children