You are in the middle of a divorce and custody is at issue. You feel lost. You went and looked up the custody factors online to try to educate yourself, but the factors just leave you lost, as you are unsure which factors are important and which are not. Over the years, our experience with custody mediators, hearing officers, conciliators and Judges have given us an idea of what kinds of evidence is important in a fact finder’s determination of who gets custody.
Please know that every fact finder at all levels have different perspectives regarding what is important in custody determinations. However, there are some elements that you will almost immediately be questioned regarding by a fact finder.
Typically, the first questions that will be asked of you will be whether (1) you have any mental illness, (2) you have any past criminal convictions and (3) do you have a substance abuse problem. Please note that all of these issues are not necessarily an impediment to obtaining custody – but the big thing to remember is do not lie about your past! Let’s deal with each of the issues.
First mental illness, no matter what kind of issues you may have in your past, can be dealt with – if you prove that you are taking care of the problem, by either taking medication or undergoing therapy or both. If you take these actions to handle your issue, then for the most part mental health issues are not damaging to custody attempts. Please note this is not to say that mental health will not be an issue.
Second, criminal convictions likewise are not fatal to attempts to obtain custody. Obviously, convictions for child abuse are a serious problem and you will find significant difficulty in overcoming this in your past history in this respect. However, most factfinders will, if they see attempts to obtain therapy and or significant temporal distance between the criminal behavior and the custody attempt, decide to lessen the impact of such convictions. Again, like mental illness, past criminal convictions are not a significant positive, but they can be overcome.
Finally, a substance abuse problem is not an impediment to obtaining custody. Typically, if an individual has a substance abuse problem the court will order monthly hair follicle tests to determine if a parent is still using alcohol or other illegal substances. Typically, in these cases, the court wants to reunite the substance abuser with their children. However, the substance abuser will have to undergo testing and will likely have a gradual increase in the amount of time spent with their child. The court will slowly increase time and look for proof that the individual is no longer affected by substances and is performing their duties as a parent correctly.
After the above-mentioned issues, one of the other major issues that can be a significant impediment to obtaining custody is either the failure to obtain medical treatment for the children or dismissal of diagnoses and prevention of the claimant obtaining medical treatment. If a child is determined to need medical treatment for a medical diagnosis or psychiatric or learning diagnosis and apparent either does not obtain that treatment or disputes the diagnosis and refuses to obtain medical treatment or can in these cases take away significant legal custody from a parent. The court will act decisively to ensure that a minor child is obtaining the medical treatment necessary to treat their condition. Evidence of failure to obtain this treatment by a parent often leads not only to reduction of physical custody but also legal custody.
Next, which seems to be important to factfinders are patterns of behavior from a parent. In particular a parent who refuses to take children’s extracurricular activities or fails to pay for those activities can also be seen as a significant negative especially if the extracurricular activities predated the divorce. They are to take the children to sports practices, music lessons, religious classes or other extracurricular activities will be seen as a parenting failure by the court. This does not mean if there are one or two missed times that this will be powerful evidence, what you need to see is a consistent failure to have children attend extracurricular activities. Improving this, you must be able to prove that the parents knew about the extracurricular activity and did not have a valid excuse for failing to attend. Moreover, it is helpful if the child wants to actually go to that activity.
Then there would be a series of behaviors which we would fall into calling judgment determinations. For instance, dropping off a child and leaving them in front of a home in inclement weather without ensuring that an adult is home and that there is a solid custody exchange is good evidence of a failure of parenting. There are also other actions which also tend to injure one’s chances of obtaining further custody such as allowing a young child to do explicit social media posts. The bottom line is anything that can be seen potentially as a failure of judgment by a parent would be a mistake.
Inability to communicate properly is also a problem. Ferry to go on our family Wizard to check out information provided by the other parent and/or refusal to cooperate with the other parent by provision of information with regard to doctors’ appointments, dentists’ appointments and school issues also could have a negative effect. Parents should be able to adequately provide each other information regarding these activities.
You must remember that your spouse can be as mean as possible to you but still be involved in school, take the children to medical appointments to obtain treatment and get the child to their extracurricular activities and their cruelty to you is not an impediment to their continuing ability to obtain custody in court.
It should also be noted that courts prefer a 50-50 custody situation. You will have to prove that somehow the other parent is inadequate as a parent in order to affect custody determinations.
Remember, to obtain documentary evidence or produce a recordation made contemporaneously with the parenting failures that you observe. It is probably better to provide your counsel everything that you have and let them make the determination of the value of the evidence you provide.
Hopefully, this will help you make a determination as to what is important and what is not important in custody determinations.