When a childless couple get divorced they can walk away from the divorce and continue with their lives, never having to look back or contact their ex-spouse again. Where children are involved this is impossible. The parents both have a responsibility, under law, for the children. They must decide who will care for the child and divide up these legal responsibilities among themselves. Although the responsibilities are required by law, they are also very emotional. There is more than just a legal requirement. There is a parental interest that cannot be quantified by time or money. Because of such strong legal and emotional considerations the children, unfortunately, can become the subject of bitter debate.
In most divorce cases with children the parents of the child know better than a judge what arrangements will be best for the child. But a judge does have parens patriae power, which means the judge may review any custody agreement to be sure it is in fact in the best interests of the child. In such cases the custody of the child is determined by a standard known as the “best interests of the child” standard. The reasoning here is simple, the court will try to place the child where the child’s best interests will be achieved. Although this standard seems logical it is often the discussion of heated debates among parents and professionals.
There is a list of items that must be considered in every case. These include:
- What each child would prefer.
- Each child’s future needs, i.e. educational, physical, and emotional.
- Each child’s ability to adapt to change.
- Each child’s age and sex as well as the child’s background.
- Each child’s history of harm or risk of harm.
- The capability of each parent or legal guardian of giving the child what the child needs.
See Do Mothers Always Get Custody? for more information on this topic.
Image by: Matt Carmen