What factors does the judge consider when he or she makes a decision about child custody?

By: LawInfo

Published: 11/2008

In most states, the usual standard that judges use in deciding child custody is the “best interests of the child”. Depending on the state you’re in, the factors that actually make up the “best interests of the child” standard may vary. There is typically no one factor that guides a judge’s custody decision; rather, the judge makes a child custody decision based on a combination of several different factors that contribute to the “best interests of the child”.

Common factors that a judge considers in making a custody decision include:

the child’s age and sex
the parent’s lifestyle, stability, and health
the parent’s ability to financially provide basic necessities for the child
the child’s current living situation and routine, which might include child care providers, school, and extracurricular activities
the relationship between the child and parent
the child’s preference, once the child is above a certain age, which can vary from about 12 to 14 years of age
any special emotional or medical needs of the child
the emotional, social, and emotional impact on the child if a custody change occurred

It is possible that the judge might give more weight to one or more factors, depending in the circumstances of your case. For example, if father’s primary reason for wanting custody is that mother has moved ten times in the last two years, and the child has been repeatedly moved from school to school, thus affecting his academic performance, then the judge would definitely be evaluating factors such as mother’s lifestyle and stability, the impact of a change on the child, and the child’s educational situation.

Although many people think that once a child reaches a certain age, he or she can decide where to live, this is typically not true. Some states place more emphasis on a child’s custody preference than others, but it is extraordinarily rare that a judge would simply allow the child to make the decision as to where to live. Rather, a child’s preferences are simply one of many factors that the judge must take into account in making a custody determination. Furthermore, the weight that the judge gives to the child’s preferences may depend in large part on the child’s age. While a six-year-old may not be able to articulate a logical reason for his preference, a fifteen-year-old’s wishes may carry greater weight in a judge’s custody decision, depending on the circumstances and the reasons for the child’s preference.

While a parent’s gender historically was taken into account in some states, in terms of a preference for awarding custody of young children, in particular, to their mothers, no such preference exists today. A judge will assess the fitness of both parents to be the child’s custodian, without regard to the parent’s gender.

Finally, a judge often will call on a guardian ad litem, social worker, custody evaluator, or a mental health professional to investigate and evaluate the family in order to make a custody recommendation to the court. Because a judge is not an expert in the matter of child custody, he or she will often rely on these experts who not only specialized knowledge in the field, but also who have worked more closely with the family members, observed their interactions, and gathered relevant information.