The 11 Factors That Will Make (or Break) Your Child Custody Case
If you follow our blog or know a bit about family law, then you should be familiar with the phrase “The Best Interests of the Child.”
Not only is it one of the most often used phrases among family law attorneys, but it’s also a vague legal standard that can be of great benefit or concern to you in your custody case.
One of my professors compared child custody to an equation with an unlimited number of variables and scarce concrete solutions.
The Arizona Legislature provides a list of possible factors considered in legal decision-making (child custody) and parenting time cases (found here).
Courts consider these factors in proceedings dealing with children. Despite the factors outlined, like so many laws, they don’t make anything clear, aren’t fully inclusive, and some are rather vague.
Here are the factors:
1. The past, present and potential future relationship between the parent and the child.
Here, the Court looks to the historical relationship between the parents and their child(ren). Do you have a bonded relationship? How much involvement do you actually have with the child? Do you take the child to school? Do you read to them and watch cartoons with them on the weekends?
If so, way to go! If not, don’t panic. Like all of these factors, this is just one of the many things the Court considers. The Court will consider your detailed plan about your expected future relationship with your child(ren).
2. Interaction and interrelationship of the child with the child’s parent or parents, the child’s siblings and any other person who may significantly affect the child’s best interest.
“It takes a village to raise a child,” and this factor looks at the “village” (or to the full spectrum of the familial relationship). Are the child’s grandparents involved with the child? If so, bring it up. What is the child’s relationship with his adopted or step-siblings? Bring it up. Do you have a new significant other whom the child adores?
Your child and the Court both need you to bring these things up!
3. The child’s adjustment to home, school and community.
How is the child really doing? Is he doing well in school, or is he struggling? Does he have friends at school or in the neighborhood? How does he socialize? Is he demonstrating unusual behavior patterns with one or both parents?
The court needs to know these things.
If your child is having problems,there’s no need to lie; divorce upsets everyone’s balance, especially the childrens’. Where the adults have the benefit of life experience, children have to learn on the fly. If your child is having difficulties adjusting, address them quickly. The more consistency you can provide in your child’s life, the better. Keeping teachers in the loop about a pending divorce could help, as well; if the child has difficulty adjusting, a teacher is in one of the best positions to notice and can alert you.
4. If the child is of suitable age and maturity, the wishes of the child as to legal decision-making and parenting time.
Before you start prepping your toddler for Court, know that Courts aren’t looking to interview toddlers. Well…at least most of the time (it might be a slow day). Courts tend to take children’s wishes into consideration once they get into or near their teen years. Of the factors, this one can weigh more heavily than many of the others. This is because each factor comes in, but through the child’s point of view.
In Arizona, there is one preferred way for the child’s voice to be heard. Click here to find out more.
5. The mental and physical health of all individuals involved.
Stress can derail our sanity and our health in any context. This is especially true in divorce. The court will want to look at each party’s physical and emotional health. Especially with respect to mental health, the court will also look at each party’s medical history.
If you do have a mental health “history” or “concerns,” don’t be afraid. In the eyes of the court, the important thing is that you are getting treatment for your condition. However, if you aren’t following doctor’s orders with respect to your prescription medication or you aren’t keeping your appointments, this could affect your case. Even with past suicide attempts, with the right strategy, it is possible to convince a judge that you have your situation under control and don’t pose a danger to your child(ren).
6. Which parent is more likely to allow the child frequent, meaningful and continuing contact with the other parent.
In family court, a willingness to work with the other party will not go unnoticed. Interfering with your ex’s time with the children won’t go unnoticed, either. Take the high road and put your personal differences aside for the purpose of allowing your children to see your ex during their scheduled time and being flexible when the situation demands it. Orders of protection and other legal strategies used only to prevent your children from spending time with your ex will be looked upon with disfavor and could cause a major strike against you in the battle for custody.
This section doesn’t apply if the Court determines a parent is acting in good faith to protect the child from witnessing an act of domestic violence or being a victim of domestic violence or child abuse.
7. Whether one parent intentionally misled the court to cause an unnecessary delay, to increase the cost of litigation or to persuade the court to give a legal decision-making or a parenting time preference to that parent.
Just like a willingness to work with the other party, a willingness to make things more difficult also doesn’t go unnoticed. It can be tempting to make every argument under the sun to get your way, but the only thing the court really cares about is what is best for the children. If your arguments and delays have nothing (or little) to do with the best interests of your kids, the court won’t buy it. In that case, your unreasonableness could cause YOU to buy the cost of your ex’s attorney, though!
8. Whether there has been domestic violence or child abuse.
This one’s simple. Domestic violence is bad. So is child abuse. Don’t do it. If you’re looking at this like an equation, then domestic violence and child abuse are like multiplying you request for custody by zero.
9. The nature and extent of coercion or duress used by a parent in obtaining an agreement regarding legal decision-making or parenting time.
Though you may be passionate and focused on getting your ex to agree to your requests, it may not come off as passionate. You could seem aggressive and controlling. An agreement which your ex later claims he entered into because of your “coercion” may not be upheld. Not only that, but if you seem too aggressive, the court might have concerns over your parenting abilities and willingness to co-parent.
10. Whether a parent has complied Domestic Relations Education Requirement.
In Arizona, parents are required to complete an educational program designed to teach people about the impact that divorce and family issues have on all the parties involved, including the children. Once a case (involving children) has been filed, complete it as quickly as possible. The things learned will help you navigate the other factors set forth above which will ultimately help you present the best case possible.
11. Whether either parent was convicted of an act of false reporting of child abuse or neglect.
Just like domestic violence and child abuse, lying about child abuse or neglect is a very bad thing. The temptation to lie is often strong, but you will hurt yourself, your children and your case if you do. Don’t do this.
These aren’t the only factors the Court considers. The Court looks to anything relevant to the child’s physical and emotional well-being. The bottom line to the child custody (legal decision-making) equation is this: Openness + Kindness = More Parenting Time.