Updated: Aug 1
The Court determines the “best interest of the child” by evaluating a number of factors, including, the following:
Priority is usually given to the parent who is first awarded custody, either by the court order after a trial or by voluntary agreement between the parents.
Priority may be given to the parent who was the primary caretaker of the child before the divorce or separation of the parties whether under a court order, agreement or just by virtue of one parent allowing the other parent to spend significantly more time with the child than the other parent
Frequently both parents work and priority may be given to the parent who has better child care arrangements for the child.
Evidence of drug and alcohol misuse can affect the award of custody, with the parent who has a substance abuse problem being less likely to receive custody.
Untreated mental illness, personality disorders, or emotional instability and/or poor parenting may affect a custody award, with the parent who is suffering from those conditions being less likely to receive custody.
Severe physical illness/disability that greatly affects one parent’s ability to care for the child may affect a custody award, with the parent suffering from such a condition being less likely to receive custody.
Evidence that one parent has committed domestic violence against the other parent, especially in the presence of the child, will affect a custody award, with the parent who committed such acts against the other parent being less likely to receive custody.
Evidence that one parent abused, neglected or abandoned the child will affect custody, with the parent who committed such acts against the child being less likely to receive custody. Also, evidence that one parent has significantly interfered with the visitation rights of the other parent or evidence that one parent made false allegations of abuse, neglect or maltreatment may cause that parent to lose custody.
A child’s preference to live with one parent may be taken into consideration by the Court depending on the age of the child, but it is not a determinative factor; however the closer the child is to 18 the more weight the court will give to the child’s wishes. However, the court will also look closely at the reasons for the child’s preference such as coercion by one parent, lack of rules or discipline or supervision in one household versus another.
Courts will consider which parent can better provide financially for the child.
Courts do not want to place a child in a dangerous or unhealthy household, for e.g. if one parent’s household poses dangers for the child, such as domestic violence, partying or dangerous items kept in the home like unsecure firearms, this could affect custody, with the parent in the dangerous household being less likely to receive custody.
If one parent is able to offer the child much better educational opportunities, such as a great school or a school that meets the child’s special needs, then this may affect custody, with the parent who is better able to meet the child’s academic needs being given custody.
Courts prefer to keep siblings together whenever possible, however, it should be noted that half-siblings receive the same treatment as full siblings when considering this factor. If the child has siblings or half-siblings living with one parent, this may affect whether that parent receives custody.
Courts will also consider the parents’ behavior in court, and are more likely to give custody to the parent who will encourage and foster a relationship between the child and the other parent.
Any other factor that might affect the best interests of the child.
It is rare that any one of these factors by itself will lead the Court to determine custody of a child. Instead, the Courts will make a custody determination in the best interests of the child based upon the totality of these factors.