Judges take considerable effort to ensure that the child's selection is genuinely what they desire. In some jurisdictions and instances, a court may conduct a private interview with the kid to learn about their ideas and feelings concerning custody. The judge will also review any relevant information submitted by one or both parties.
In most cases, the judge will use a set of guidelines called "factors" to help make this decision. These factors are:
The best interest of the child - Is it in the child's best interest for you to have legal custody? This could be based on your ability to provide a stable environment for the child, your willingness to follow any orders given to you by the judge regarding visitation, etc.
The wishes of the parents - How do you think the child would like to be cared for during periods of visitation? Would they prefer to live with one parent or the other? What role should each play in making important decisions about the child's care?
The health of the parents - Are they able to care for themselves? Are they addicted to drugs or alcohol?
Judges must make custody decisions in the "best interests of the kid." The "best interests of the child" statute mandates courts to prioritize the needs of the kid over the requirements of the parent. The law mandates courts to award custody to the parent who can best satisfy the needs of the kid. These needs include love, stability, and emotional support.
In addition to these priorities, judges also consider a number of other factors when making custody decisions. At its most basic level, court decisions on child custody are based on which parent will provide the majority of the parenting time for the child. Judges will usually give more weight to this factor than any other when deciding custody cases. However, judges take into account other aspects of the parents' lives when making decisions about custody. For example, judges may give weight to which parent can better provide for the social life of the child or who can better facilitate visitation with the child's other parent.
Courts also look at how long each parent has been awarded custody, whether there is any history of violence between the parents, and what effect the separation from his or her child would have on any mental illness that the parent may have.
Finally, judges consider the preference of the child, if he or she is old enough to express a desire regarding custody decisions. If the child does not express a preference, then judges will usually defer to the wishes of the parent who has been awarded legal custody.
For the judge to consider a child's preference in the custody decision, it must be fair. This does not imply that the child's choice must entail thorough thought or critical analysis; rather, the child's judgment should not be based on arbitrary or superficial considerations. For example, if a seven-year-old says she wants to live with her mother because it's easier to get ice cream there, this would not be considered fair by most judges. The best way for a parent to show that their child's preference is fair is to obtain an in-depth understanding of the reasons behind the choice and to demonstrate that they have taken these factors into account when making their decision.
In addition to being fair, a child's preference must be given serious consideration by the court. This means that the judge cannot just ignore what the child wants. If the child is old enough to understand the concept of custody, then they can clearly express their opinion on who they want to live with. However, if they are not old enough to understand the legal concept of custody, then the judge can decide which parent will be designated as the primary caregiver and assign them physical custody of the child. If there is no primary caregiver (because both parents want equal time with their child), then the court can choose one parent to have "secondary" or "visitation" custody.
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