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The Basic Standard for Determining Child Custody

Though the courts in all states will examine a wide range of factors when establishing custody of minor children, the basic guideline is always what the law defines as “the best interests of the child.” To ascertain the best interests of the child, the court will consider:

  • The age and gender of the child
  • The capacities of both parents to provide a loving and nurturing environment
  • The ability of the parent seeking custody to meet the child’s basic needs for food, shelter, clothing, medical care and other necessities
  • The age, physical and mental health, and character of each parent
  • Any existing emotional ties between parent and child
  • Whether granting the custody request will unnecessarily disrupt the minor child’s sense of home and security
  • Whether the parents can agree on visitation rights that are in the child’s best interests
  • Any evidence of abuse or neglect by either parent
  • The child’s preferences, if the court determines the child is old enough to make such a decision

As with child support, the parents are free to negotiate and implement a custody arrangement without the intervention of the court. However, if the court determines that such a negotiated agreement is not in the best interests of the minor child, the court can impose its own custody order on the parties.
The Different Types of Custody
The courts distinguish custody as:

    Child Custody

  • Joint vs. sole custody—An award of joint custody gives both parents responsibility and rights with respect to the child. An order of sole custody grants all legal rights in the custodial parent.
  • Physical vs. legal custody—Physical custody simply refers to where the minor child actually lives or spends the majority of his/her time. Even in situations where the child spends a nearly equal amount of time with each parent, the court will typically designate one of the parents as the legal custodian. Legal custody, on the other hand, addresses all decisions that must be made in the child’s interests, such as medical, educational, religious or other special needs. As a general rule, courts order sole physical custody and joint legal custody.

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