What courts consider when deciding who gets the kids.

What's Below:

What factors do courts take into account when deciding who gets custody of the children?
If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?
Are courts more likely to award custody to mothers than to fathers?
Does custody always go to just one parent?
Are there special issues if a gay or lesbian parent is seeking custody or visitation rights?
Is race ever an issue in custody or visitation decisions?
Who determines how much visitation is reasonable and fair?
Is mediation is the best approach to solving disagreements about child custody?

What factors do courts take into account when deciding who gets custody of the children?

Almost all courts use a standard that gives the "best interests of the child" the highest priority when deciding custody issues. What the best interests of a child are in a given situation depends on many factors, including:

• the child's age, sex, and mental and physical health
• the parent's mental and physical health
• the parent's lifestyle and other social factors, including whether the child is exposed to second-hand smoke and whether there is any history of child abuse
• the emotional bond between parent and child, as well as the parent's ability to give the child guidance
• the parent's ability to provide the child with food, shelter, clothing, and medical care
• the child's established living pattern (school, home, community, religious institution)
• the quality of the child's education in the current situation
• the impact on the child of changing the status quo, and
• the child's preference, if the child is above a certain age (usually about 12).

Assuming that none of these factors clearly favors one parent over the other, most courts tend to focus on which parent is likely to provide the children a stable environment, and which parent will better foster the child's relationship with the other parent. With younger children, this may mean awarding custody to the parent who has been the child's primary caregiver. With older children, this may mean giving custody to the parent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships.

If one parent moves out and leaves the kids with the other parent, does it hurt his or her chances of getting custody at a later date?

In a word, yes. Even when a parent leaves to avoid a dangerous or highly unpleasant situation, if the parent hopes to have physical custody at a later time it's unwise to leave the children behind. The parent who leaves sends a message to the court that the other parent is a suitable choice for physical custody. Also, assuming the children stay in the home where the parents lived as a family, continue in the same school, and participate in their usual activities, a judge may be reluctant to change physical custody, if only to avoid disrupting the children's regular routines.

If a parent must leave the familial home (and wants to be the primary physical custodian), he or she should take the children with him and, as quickly as possible, file in family court for temporary custody and child support. If this process is delayed, the other parent may go to court first and allege that the kids were taken without his or her knowledge. Family law judges frown on a parent who removes the children from the home without seeking the court's recognition. A judge may order that the children be returned to the family home, pending future proceedings to determine physical custody.

Are courts more likely to award custody to mothers than to fathers?

In the past, most states provided that custody of children of "tender years" (about five and under) had to be awarded to the mother when parents divorced. In most states, this rule has either been rejected entirely or relegated to the role of tie-breaker if two otherwise fit parents request custody of their preschool children. No state now requires that a child be awarded to the mother without regard to the fitness of both parents. Most states require their courts to determine custody on the basis of what's in the children's best interests, without regard to the parent's gender.