How does a judge determine who gets custody – general provisions
” How does a judge determine who gets custody of the children? ” is one of the most emotional questions divorcing parents have.
The best interest of the child is considered above anything. The parents feelings towards the child do not count when considering the child’s health, safety and welfare. California family code 3o11 has a general provision regarding the meaning of health, safety and wealth of the child in the context of child custody determination
The factors a judge does consider to determine who gets custody are:
- Child age
- Parents living situation
- Child’s relationship and attachment to parents
- Child’s health and safety
- Parents’ stability
- Neglect and abuse
- Willingness of co-parent
- Child preferences
- Who spent more time with the child up to the present date
Let’s look at the details of each factor listed above.
The child’s age is considered an important factor because when the child is young, the judge would look at how much care he or she needs and who is capable to provide this care. If the mother is the one who prepares food for child, changes his diapers, baths the child, does the laundry and places him or her to bed, she is the primary care taker and the physical custody would likely be in her favor will to consider for this factor.
Parents living situation. The house or condo where each parent lives. Who can provide a more comfortable environment for children live in? The judge may consider if the children have their room, ideally each will have their own room.
Child’s health and safety is one of the main factors for the court to consider. If either parent creates an unhealthy or unsafe environment for the child, it is unlikely that that parent would be awarded child custody.
Child’s relationship with the parent. Parent’s warmth and controlling in a positive way are essential parental attributes to create a positive effect on the child. Good emotional sensitivity to the child’s response to parent’s communication is a factor to consider when making a decision regarding child custody.
Stability would include stability in society and at the home. Ability to produce a stable income, control emotion in public and at home as opposed to jumping from one job or business to another each couple of months.
Neglect and abuse. A parent who is not involved in the children performance at school, general development and proper social development of child has a very little chance to be a custodial parent. Physical or emotional child abuse will place a significant impact on loosing child custody.
Who is spending more quality time with the children up to the present date is one of the significant factors. The judge would look at the history of the last couple years and conclude that the similar pattern will be continue in the future.
SPECIAL SITUATION -DOMESTIC VIOLENCE
How does a judge determine who gets custody in case if there is a domestic violence reported is impacted by Family Code Section 3044.
According to this family Code, judge would give significant consideration a domestic violence case if the parent was convicted of domestic violence in the last five years. The domestic violence could be not only against the children, but against other parent as well. A judge unlikely would grant sole or join physical or legal custody to the perpetrator of domestic violence. There is a possibility that judge would award that spouse visitation rights.
Related article: How to win a child custody case in California.