Child Custody

Child custody and parenting time can be two of the most difficult issues to address for parents who are divorcing, or parents who have never been married to each other.

It’s important that parents understand that custody and parenting time decisions are determined by the judge based off the best interest of the child(ren). The judge will review the best interest factors when making a ruling on custody and parenting time.

The following are the best interest factors with sample questions under each factor. These questions will provide you with an idea of what the judge is looking for under each factor, and what he or she may ask you.

1. The love, affection and other emotional ties existing between the parties involved
   and the child. (A)
   • To whom is the child more closely bonded?
   • When the child has a problem, to whom does the child speak?
   • When the child has a triumph, to whom does the child speak?
   • Who spends more hours per day with the child?
   • Who prepares the child’s meals?
   • Who has the ability to separate the child’s needs from their own and to empathize with the child?
   • To whom does the child openly show signs
   • How does the child relate to each parent?
   
2. The capacity and disposition of the parties involved to give the child love, affection
   and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (B)
   • Who bathes and dresses the child?
   • Who stays home from work when the child is sick?
   • Who takes responsibility for involvement in academic affairs?
   • Who takes responsibility for involvement in extracurricular activities?
   • Who disciplines the child?
   • Who uses preferable discipline techniques?
   • Who has preference because of the other’s verbal abuse, substance abuse, or arrest record?
   • Who has preference because of the ability to provide the child access to an
   extended family?
   • Who has been most consistent in the guidance of the child as it relates to their education and faith?
   
3. The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (C)
   • Who buys the groceries, plans and cooks the meals?
   • Who makes purchases for the child?
   • Who attends to special needs of the child?
   • Who has greater earning capacity?
   • Who adjusts working hours based on the needs of the child?
   • Who has certainty of future income?
   • Who has the ability to provide insurance for the child?
   • Who attends classes for professional involvement?
   • Who has requisite knowledge to meet the needs of the child?
   • Who has kept up vaccinations and daily hygiene?
   • Who schedules and takes the child to medical appointments?
   • Who schedules and takes the child to dental appointments?
   • Who arranges for and supervises child care?
   
4. The length of time the child has lived in a stable, satisfactory environment and the
   desirability of maintaining continuity. (D)
   • Who has provided the greatest sense of stability of residence for the child?
   • Who is more likely to provide stability in the future?
   • Who can provide a safe environment?
   • Who can provide continuity of the child’s overall custodial environment?
   
5. The permanence, as a family unit, of the existing or proposed custodial home or
   homes. (E)
   • In whose custody will the family unit not be split?
   
6. The moral fitness of the parties involved. (F)
   • Here, the focus is not to punish a parent. Rather, it is on the effect the parties’
   behavior has had, or will continue to have on the child, and how the individual functions as a parent. For example:
   • Who has priority as a result of the other party having an extramarital affair known by the children?
   • Has either party engaged in any of the following conduct:
   Verbal abuse
   Drinking problem
   Poor driving record
   Physical or sexual abuse of the child
   Other illegal or offensive behaviors.
   
7. The mental and physical health of the parties involved. (G)
   • Does either party have a physical or mental health problem that significantly interferes with the ability to safeguard the child’s health and well-being?
   • Age of contestant compared to age of the child—would energies of the child
   overwhelm the contestant?
   
8. The home, school, and community record of the child. (H)
   • Who can provide leadership to attend school?
   • Who can provide leadership in extracurricular activity participation?
   • Who is actively involved in school conferences, transportation, and attendance at school events?
   • Who can more adequately assist reducing the necessity for other agency involvement (the juvenile court, the DHS), or if another agency is involved, who can cooperate more fully?
   • Who can more adequately assure the child’s access to friends and peers useful for the child’s development?
   • Who can more adequately plan and supervise the child’s undertaking of home responsibilities that are appropriate to the child’s age and circumstances?
   • Who takes responsibility for completion of school assignments?
   
9. The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (I)
   • This is relevant only if the child appears mature enough and capable of expressing with whom they prefer living, absent the product of manipulation or coercion.
   
10. The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (J)
    • Who can best cooperate with an appropriate parenting time schedule by the other party? Who is least likely to disparage the other parent in the presence of the child based upon past performance?
    • Has either party actively sought to alienate the child from the other parent?
    
11. Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (K)
    • Have there been incidents of violence in the home by any party against any party? If so, has there been a police report, arrest or conviction? Has there been a pattern of violence whether reported or not reported?
    
12. Any other factor considered by the court to be relevant to a particular child (L)
    • Who can most likely address the special needs of the child?
    • Has either parent threatened to kidnap the child?
    • Does either parent spend excessive time traveling for the child?
    • Does either parent have a record of failure to exercise parenting time, failure to notify, or failure to return the child?
    • Who has responsibility for the actual and proposed child care arrangements?