If two parents are unable to reach an agreement on a parenting plan, a family court judge will be forced to make a decision after giving each of the parents the right to present their case. Judges have the freedom and ability to consider a wide range of factors in reaching their decision. First, there are two primary things judges consider when they determine child custody:
- How major decisions pertaining to children will be made
- The physical location of children and rights to visitation
Every child custody case comes down to the best interests of the child. That is the test used by every family court for any matter related to a child. This is a flexible test that allows a judge to consider numerous factors. Courts want children to be in the best possible situation. Still, the presumption is that both parents should play a role in a child’s life. Without anything presented to the contrary, that is assumed to be in the best interests of a child. Below we discuss some considerations a judge may look at when deciding a child custody case.
A Parent’s Role Before the Divorce
A judge will not suddenly award custody to a parent who was not previously involved in their child’s life. Parents stand a better chance of being awarded custody if they have a track record of participating in major decisions regarding the child and spending time with them. A family court judge wants to maintain continuity to the fullest extent possible and not introduce major changes if they are not necessary. In a sense, custody is a privilege, and a judge will not award it to someone who did not fully participate in their child’s life beforehand.
A Parent’s Fitness
A judge needs to know that a parent has the fitness to have custody of their child. They need to have the capacity to make sound decisions. Judges could look at a parent’s mental health and whether they have a criminal record. Parents may be required to obtain counseling or therapy as part of a parenting plan. In addition, the court may also consider whether a parent is physically healthy enough to have custody.
Included in this consideration is the safety of the child. If awarding custody or visitation to a parent would place the child in a dangerous situation, the court would likely be cautious. One issue that frequently comes up is when one parent has a substance abuse problem. Courts try to make sure that the child will be protected, first and foremost. They may only allow supervised visits with a parent who is dealing with a substance abuse problem. Over time, that could change as the parent recovers.
The Relationship Between the Parents
The presumption, in any case, is for parents to exercise custody jointly. However, the court may think twice if the parents have a difficult, unpleasant relationship with little hope of being able to work together. The court will consider the relationship between the parents to avoid instituting an arrangement that has little chance of success from the start.
One thing a court will weigh significantly is when one parent has a history of domestic abuse. A judge will not want a parent to be put in a situation that physically endangers them. The same goes for when a parent is accused of abusing their child.
The Relationship Between a Child and their Parent
Again, a judge will consider the quality of a child’s relationship with each parent. It could be that one parent has spent much more time with the child and has a much deeper relationship. To separate the child from that parent will compound a difficult situation and make it worse for the child. Courts could disproportionately divide custody when a child has a strong attachment to one parent, although a judge will not want to prevent the child from developing a strong relationship with the other parent.
The Physical Location of the Parents and Child
Courts will not want to place a child in a difficult position by forcing them to travel large distances between their parents’ homes often. They recognize that children need to go to school and must have time to be themselves and enjoy life as kids. Judges will not want children in a physically or emotionally taxing situation. If the parents live a large distance apart, a judge may come up with a solution that allows one parent to spend time with the child while minimizing their travel.
In addition, a parent who lives far away may not be able to effectively participate in important decision-making. Judges will also consider distance in determining the extent to which parents may share in custody.
At the same time, a court also wants to keep a child together with their siblings. A judge may be hesitant to allow siblings to be moved apart, and will even consider the proximity between a child and a half-sibling.
The Preference of the Child
Texas law does not allow children to decide on their own where they will live. However, the older the child, the more weight a judge will give to their preference. Children over the age of 12 will get some say in where they live, but it is up to the court to make the final decision based on the best interests of the child.
There are many arguments that could be used to persuade a judge in a child custody case. An experienced family law attorney will review your situation and help you determine what may sway the court. In the meantime, you should make every effort to resolve a custody dispute without the need for a court hearing and a judge’s decision.
To schedule a consultation, contact us today. Our Brazoria County, Texas family law attorneys are ready to help.